Allahabad High Court
Abhishek Kumar vs State Of U.P. And Another on 2 November, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 87 Case :- CRIMINAL REVISION No. - 1785 of 2020 Revisionist :- Abhishek Kumar Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Vipin Kumar Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the revisionist and learned A.G.A. for State. None has appeared on behalf of opposite party no. 2 despite service of notice. Accordingly, the Court considers it appropriate to proceed to decide the case on the basis of the material available on record.
2. The present revision has been preferred against Judgement and order dated 27.01.2020 passed by learned Principal Judge, Family Court Kasganj in Case No. 395 of 2019, under Section 125 Cr.P.C. Police Station Sahawar, District Kasganj, whereby revisionist has been directed to pay Rs. 5,000/- per month as maintenance to his wife / opposite party no.2 from the date of application.
3. It has been argued by learned counsel for the revisionist that impugned order is against facts and law and thus, liable to be set aside. It was submitted that opposite party no. 2 has left the matrimonial home at her own free will and that she was never harassed for dowry by the revisionist. Learned counsel has pointed out the cross-examination of opposite party no. 2, wherein she has stated that she remained at her matrimonial home for one month only and after that she has come back to her parental house. It was submitted that the court below has not considered the facts and evidence of the matter and that impugned order was passed in a routine manner. It was also submitted that the amount of maintenance granted by the court below is highly excessive and arbitrary. It was further submitted that the revisionist is a labourer and he has no means to provide the maintenance of Rs. 5,000/- per month to opposite party no. 2. It was further argued that the maintenance was granted from the date of application and not from the date of order.
4. Learned AGA has submitted that impugned order has been passed after considering all relevant facts and that there is no illegality, error of jurisdiction or perversity in the impugned order.
5. Chapter IX of Code of Criminal Procedure deals with the order for maintenance of wives, children and parents. As per section 125 of Cr. P. C. if any person having sufficient means neglects or refuses to maintain his wife, his legitimate or illegitimate minor children whether married or not, and his father or mother unable to maintain themselves, the Court may upon proof of such refusal or neglect direct such person to make monthly allowances and to pay the same to such persons from time to time. It is well established that object of grant of maintenance is to afford a subsistence allowance to the wife who is not able to maintain herself. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. Maintenance awarded to a wife is not a bounty. It is awarded to her so that she can survive. The fact that time is spent between the date of the application and a final adjudication and an award in favour of the wife, does not mean that she had enough funds to maintain herself. The provisions of maintenance of wives and children intend to serve a social purpose [see Jagir Kaur & Anr. v. Jaswant Singh [AIR 1963 SC 1521].
6. In Nanak Chand v. Chandra Kishore Aggarwal & Ors [1969 (3) SCC 802, the Supreme Court, discussing Section 488 of the old Cr.P.C, held that Section 488 provides a summary remedy and is applicable to all persons belonging to any religion and has no relationship with the personal law of the parties. In Captain Ramesh Chander Kaushal v. Veena Kaushal and Ors. [AIR 1978 SC 1807], the Court held that Section 125 is a reincarnation of Section 488 of the Cr.P.C. of 1898 except for the fact that parents have also been brought into the category of persons entitled for maintenance. It was observed that this provision is a measure of social justice specially enacted to protect, and inhibit neglect of women, children, old and infirm and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. Again in Vimala (K) v. Veeraswamy (K) [(1991) 2 SCC 375, Hon'ble Apex Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. It was held the provision provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. From above stated case laws the legal position is quite clear that Section 125 Cr. P.C is a measure of social legislation and is to be construed liberally for the welfare and benefit of the wife and children.
7. Keeping the above mentioned position of law in mind, in the instant case it may be seen that it is not disputed that opposite party no. 2 is legally wedded wife of revisionist. In her application under section 125 CrPC, the opposite party No. 2 has alleged that after her marriage in the year 2018, she was harassed by the revisionist and his family members on account of dowry and they used to demand Rs. 2 lakhs and one buffalo. On 23 2019 the revisionist and his family members have given beatings to the opposite party No. 2 turned her out of matrimonial home. Since then she has not been provided any maintenance. She has alleged that the revisionist is having illicit relation with one girl in his village and he has neglected her maintenance. She had alleged that the revisionist is B.Sc., B. Ed., and he is working as a supervisor in a factory at Noida and gets salary of Rs. 40,000 per month. Besides that he is also having 12 bighas agricultural land.
8. That revisionist has denied the case of opposite party regarding dowry demand and harassment and alleged that he has never made any demand of dowry, rather the opposite Party No. 2 was taken away by her parents and she is residing at her parental home with her own free will. He has tried to bring her back but she refused.
9. In evidence the opposite party No. 2 has been examined as PW1. The revisionist has also appeared as a witness as DW-1. It is correct that in her cross-examination, the opposite party No.2 has stated that she remained at her 'sasural' only for one month and after that she came to her parental home but a single sentence can not be appreciated out of context, rather the statement has to be considered as a whole. In her statement has has clearly alleged that she was turned out of her matrimonial home and that she has called her brother, who brought her to parental home. After considering the averments and evidence of both the parties, the court below has rendered finding that the opposite party No. 2 has just and sufficient reasons to live separately from her husband. It was also held that that that the revisionist has sufficient means to maintain his wife. He is a healthy and educated person and has sufficient means to provide maintenance to his wife. The court below also found that the revisionist has neglected the maintenance of his wife and that she is entitled for maintenance. Considering evidence of the parties, the court below has awarded Rs.5000/ per month as maintenance to the opposite party No. 2 from the date of application. Learned counsel for revisionist has failed to point out any material illegality, perversity or error of jurisdiction in the impugned order. The findings of the court below are based on evidence. The court below has also directed that the arreas of maintenance may be paid in five instalments. In view of all these facts and evidence it can not be said that the award of maintenance from the date of application is not justified. Learned Court below has considered the entire facts and evidence in correct perspective and directed the revisionist to pay Rs. 5000/- per month as maintenance to the opposite party no.2 vide impugned order dated 27.01.2020. In view of attending facts and circumstances of case, the quantum of maintenance awarded by the court below can not be said excessive and arbitrary.
10. At this juncture it may be stated that object of section 397 CrPC is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. The revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. In this connection reference may be made to a recent case of Hon'ble Apex Court in State of Madhya Pradesh Vs. Deepak [Criminal Appeal No. 485 of 2019] decided on 13.03.2019.
11. In the instant case in view of the aforesaid facts and circumstances of the case, it can not be said that impugned order is suffering from any patent defect, illegality or error of jurisdiction so as to require any interference by this Court in exercise of powers under revisional jurisdiction.
12. The instant revision lacks merit and is, accordingly, dismissed.
Order Date :- 2.11.2020 Anand