Allahabad High Court
Upendra Singh vs State Of U.P. And 3 Others on 28 August, 2023
Author: Vipin Chandra Dixit
Bench: Vipin Chandra Dixit
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:173856 Court No. - 79 Case :- MATTERS UNDER ARTICLE 227 No. - 9133 of 2019 Petitioner :- Upendra Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ved Prakash Pandey Counsel for Respondent :- G.A.,Suresh Dhar Dwivedi Hon'ble Vipin Chandra Dixit,J.
Heard Sri Ved Prakash Pandey, learned counsel for the petitioner, learned A.G.A. for the State and Sri Atul Kumar Srivastava, Advocate holding brief of Sri Suresh Dhar Dwivedi, learned counsel appearing on behalf of respondent nos. 2 to 4.
This petition under Article 227 of the Constitution has been filed by the petitioner against the order dated 25.10.2019 passed by Additional District Judge, Court NO.6, Shahjahanpur dismissing the Criminal Appeal No. 32 of 2019 and order dated 4.5.2019 passed by Civil Judge(J.D.)/Judicial Magistrate, Tilhar, Shahjahanapur in Complaint Case No. 1065 of 2018 (Priyanaka Singh and Others Vs. Upendra Singh and Others) filed under Sections 12, 18, 19, 20, 22 of Domestic Violence Act.
The brief facts of the case is that the opposite party nos. 2 to 4 had filed complaint under the Domestic Violence Act against the petitioner and during pendency of complaint had moved an application under Section 23 of Domestic Violence Act, claiming interim maintenance against the petitioner, which was allowed by Civil Judge (Junior Division)/Judicial Magistrate, Shahjahanpur vide order dated 04.05.2019 and petitioner was directed to pay Rs. 2,000/- per month to the opposite party no.2, who is wife of petitioner and Rs. 1500/- per month each to opposite party nos. 3 and 4, who are minor sons of petitioner.
The petitioner had preferred an appeal being Criminal Appeal No.- 32 of 2019 against the order dated 04.05.2019, which was dismissed by the Additional District Judge, Court No.- 6, Shahjahanpur.
Learned counsel for the petitioner submits that the petitioner is unemployed having no source of income and the interim maintenance awarded by the learned Magistrate is highly excessive. It is further submitted that without considering the comparative hardship, the order of interim maintenance was passed by the learned Magistrate.
On the other hand, learned counsel appearing for the respondent nos. 2 to 4 submits that the interim maintenance at the rate of Rs. 2,000/- per month to the wife and Rs. 1500 each to the minor sons cannot be said to be excessive in any manner.
Admittedly, the respondent no.2 is legally married wife and respondent nos. 3 and 4 are minor sons of of petitioner. The petitioner being husband of opposite party no.2 and father of respondent nos. 3 and 4 is morally bound to discharge his legal obligation of maintaining his wife and minor sons in any circumstances. The husband cannot be heard to say that he is not in a position to earn enough to be able to maintain his wife and children. In the present case as the petitioner has not frankly disclosed his income, an adverse inference can be drawn against him. Now it is the settled position of law that when the husband does not disclose to the court the exact amount of his income and the question of maintenance of wife and children arises, the presumption would be against the husband and the obligation of the husband is on a higher pedestal.
Considering the facts and circumstances of the case and keeping in mind the spiraling inflation rate and high cost of living index, the Court is of the view that interim maintenance at the rate of Rs.2,000/- per month in favour of wife and Rs.1,500/- per month each in favour of minor sons cannot treated to be on higher side rather it is too meagre.
In view of above, there is no illegality, infirmity or perversity in the impugned order which may warrant any interference by this Court. No ground for interference is made out. The writ petition filed by husband is liable to be dismissed.
The writ petition is dismissed, accordingly.
Order Date :- 28.8.2023 Virendra