Allahabad High Court
Lovelesh Kumar vs State Of U.P. And 2 Others on 27 September, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:188571 Judgement Reserved On: 24.8.2023 Judgement Delivered On: 27.9.2023 Court No. - 50 Case :- CRIMINAL REVISION No. - 1009 of 2023 Revisionist :- Lovelesh Kumar Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Devansh Misra,Gyanendra Kumar Tripathi Counsel for Opposite Party :- G.A.,Anjit Kumar Verma Hon'ble Ram Manohar Narayan Mishra,J.
1. Heard Sri Devansh Misra, learned counsel for the revisionist, Sri Arvind Kumar Singh, Advocate, holding brief of Sri Anjit Kumar Verma, learned counsel for the opposite party Nos.2 and 3, learned AGA for the State and perused the material placed on record.
2. Instant criminal revision has been preferred against the impugned ex-parte judgement and 29.11.2022, passed by Additional Principal Judge, Family Court, Court No.2, Ghaziabad, in Petition No.127 of 2018 (CNR No. UPGZO 1008852 of 2018) (Km. Prachi Singh alias Hansika vs. Lovelesh Kumar), under Section 125 Cr.P.C., whereby the court below has awarded Rs.7,000/- per month as maintenance to the minor daughter of Smt. Mansha Chaudhary, opposite party No.2 and the revisionist.
3. Learned counsel for the revisionist submitted that this is admitted fact that the revisionist and opposite party No.2 were previously married but their marriage was dissolved by the decree of divorce passed under Section 13-B of Hindu Marriage Act vide judgement and order dated 8.7.2017 by Additional Principal Judge/FTC, Court No.2, Ghaziabad. In decree of divorce, it is specifically stated that the marriage of the petitioners, which was solemnized on 16.1.2015 is dissolved. He further submitted that in divorce proceeding, the custody of the child was voluntarily taken by opposite party No.2- the previous wife of the revisionist, to which no objection was raised by the revisionist. The opposite party No.2 solemnized second marriage with another person, who is also earning sufficiently. This is also admitted fact that opposite party No.2 works as Class-IV employee in agricultural department and in impugned judgment her monthly income is assessed as Rs.35,707/- and thus being an economically independent person, she is able to maintain her minor daughter without any assistance of her previous husband. By seeking maintenance for minor daughter from her previous husband, the opposite party No.2 seeks to shift her liability to maintain the minor child on revisionist. He next submitted that without any proof of neglect or refusal to maintain on the part of the revisionist, the court below in a cryptic manner has awarded maintenance to the opposite party No.3. The proceeding were initiated before the family court with a view to harass the revisionist. The gross home salary of the revisionist is around Rs.65,000/- per month and take home salary is Rs.6051/-, as he has filed his salary slip as Annexure No.1 to the supplementary affidavit. He has taken a personal loan, for which he has to pay Rs.14,392/- as monthly installment from his net salary. As the revisionist works as a Constable in CISF in New Delhi, he gets HRA and some other allowances on higher side due to being posted at New Delhi and the same is liable to be reduced, if he was posted at some small city. Thus, the salary of the revisionist can not be treated an uniform salary. The impugned judgement and order passed by the learned court below is vitiated by factual and legal error and the same is liable to be set aside.
4. Per contra, learned counsel for the opposite party Nos.2 and 3 submitted that there is no illegality, irregularity or impropriety in impugned order passed by the learned court below. The applicant's mother has not sought maintenance for herself on account of being employed in a government establishment but responsibility to maintain the child born out of her wedlock with revisionist lies on revisionist, who is her father and he cannot withheld her to maintain his daughter. He next submitted that the opposite party Nos.2 and 3 have stated before the court below that the monthly income of the revisionist is Rs.65,000/- per month, which appears in paragraph No.2 of the impugned judgement and in present revision, the revisionist has filed his salary details alongwith supplementary affidavit at page No.8, which reveals that the gross salary of the revisionist is Rs.65,271/- and take home salary is Rs.60,512/-, after deductions. Thus, the net salary of the revisionist is sufficient for providing the maintenance awarded by the court below to the minor daughter of the spouse. The impugned order is a speaking and reasoned order and warrants no interference in present revision. He lastly submitted that the opposite party No.2 has taken Rs.6,50,000/- loan from bank for which she has to repay a sufficient amount of money from her salary to bank.
5. The revisionist filed his salary certificate through supplementary affidavit, which reveals that he is posted as a Constable in CISF. His gross salary in June, 2023 was Rs.65271/-. Compulsory deductions were Rs.4759 and take home salary was Rs.60512/-. In supplementary affidavit, the revisionist has also stated that cousin sister of opposite party No.2 namely, Abhilasha Singh lodged a false FIR against him vide Crime No.299 of 2019, under Sections 376, 452, 504, 506 IPC with a view to harass the revisionist and extort money from him. He has also stated that the revisionist bears liability to pay the house loan for which a monthly deduction of Rs.14329/- is made from his net salary. Accordingly, it appears that even after deductions of house rent, Rs.45,000/- remains with him to meet out his expenses and liability on monthly basis. This is admitted fact that divorce has been effected between the parties by orders of competent court vide judgement dated 8.7.2017 and the minor daughter was retained by opposite party No.2, who is her mother. Birth of Km. Prachi Singh alias Hansika took place on 14.4.2016, who born out of their wedlock. The parties undertook in their joint application under Section 13-B of Hindu Marriage Act that they will not institute any litigation against each other henceforth. Daughter Km. Prachi @ Hansika will remain with opposite party No.2, her mother. There was no provision regarding maintenance of minor daughter of the parties. No alimony was awarded to opposite party No.2- Smt. Mansha Chaudhary in decree of divorce. This is also admitted fact that both the parties are earning members. The opposite party No.2 Smt. Mansha Chaudhary works as Class IV employee in Government Agricultural Department and her monthly income is Rs.35707/- whereas gross salary of revisionist is Rs.65,000/-, as stated above. Thus both the parents of the minor girl child are earning members and are obliged to maintain the child irrespective of the fact that a divorce has been effected between the spouse or parents of the child.
6. Section 125 Cr.P.C. provides that if any person having sufficient means neglects or refuses to maintain his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or 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. Thus, liability of father to maintain his minor child is not dependent on subsisting marital relationship or divorce between the parents of the child.
7. This court is not convinced with the submissions of learned counsel for the revisionist that once the decree of divorce has been passed, the mother of the child, who is also an earning member has retained the custody of the child out of her free will and without objection of her husband. Hence, the father of the child is not oblige to maintain her. This is the case of respondent party No.2 in maintenance petition that even after decree of divorce passed by learned Family Court, the opposite party, who is her previous husband neglects to maintain the minor daughter of the petitioner. He is a man of sufficient means, even his mother is a pensioner. Apart from the salaried income, he has also possessed a large chunk of agricultural land in his village whereas applicant No.1 also bears the medical and other expenses of her old mother and she is nurturing her minor child anyhow by her limited economic resources. The revisionist is in a better position to maintain the girl child born out of the wedlock with opposite party No.2. His liability to main the child does not aimed due to divorce by mutual consent between him and the opposite party No.2. The amount awarded by learned court below towards maintenance is also not exorbitant or excessive keeping in view his take home salary. Thus, I find no substantial, factual or legal error in impugned orders passed by learned courts below. However, taking into consideration the fact that the opposite party No.2, the mother of the child who is also an earning member, is also under obligation to maintain her minor child alongwith her former husband, the biological father of the child.
8. In view of aforesaid, present criminal revision stands partly allowed and the amount of maintenance is liable to be modified to the following extent:-
9. It is directed that the revisionist Lovelesh Kumar will pay Rs.5,000/- per month as maintenance to his minor daughter Km. Prachi Singh @ Hansika, who is lying in guardianship of her mother- opposite party No.2, from the date of filing of application to date of judgement dated 29.11.2022 and thereafter at the rate of Rs.6000/- per month, subject to terms mentioned in impugned judgement and order.
10. Impugned order passed by learned court below stands modified to above extent.
11. Any infraction in compliance of this modified order by revisionist entail issuance of coercive process against him by the learned court below.
Order Date :- 27.9.2023 Kamarjahan