Allahabad High Court
Devendra vs State Of U.P. And Another on 30 September, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 87 Case :- CRIMINAL REVISION No. - 1402 of 2020 Revisionist :- Devendra Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Balbeer Singh Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
Heard learned counsel for the revisionist and learned A.G.A. for State.
The present revision has been preferred against Judgement and order dated 28.05.2020 passed by learned Principal Judge, Family Court Hathras in Case No. 291 of 2019 (Smt. Tinky @ Shandhya Vs. Devendra) under Section 125 Cr.P.C. Police Station Sadabad, District Hathras, whereby revisionist has been directed to pay Rs.3000/- per month as maintenance to the opposite party no.2 from the date of application.
It has been argued by learned counsel for the revisionist that impugned order is against facts and law. Earlier opposite party no.2 has filed a case under Sections 498A, 504, 506, 377, 506, 323 I.P.C. and Section 3/4 of Dowry Prohibition Act, which was referred for mediation between the parties. The revisionist has also filed a petition under Section 9 of Hindu Marriage Act. Learned Court below without considering all these aspects of the matter awarded maintenance Rs. 3000/- per month to the opposite party no.2 from the date of application. It was further submitted that revisionist is a student and he has no source of income and thus, he is not in position to pay the maintenance. Further, maintenance has been awarded by learned Court below from the date of order without assigning any reasons for the same. It was submitted maintenance awarded by the court below is excessive and arbitrary and that the impugned order has been passed without considering relevant facts and financial position of revisionist and thus, the impugned order of maintenance is liable to be set aside by this Court.
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.
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 Magistrate First Class 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]. 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, a three-Judge Bench of the 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.
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 Cr.P.C. she has inter-alia alleged that she was harassed for dowry and that on 19.06.2018, she was ousted from her matrimonial house. She has also alleged that she is an unskilled lady and has no source of income whereas the revisionist is earning Rs. 40,000/- per month by doing job in J.S.W. company.
It apparent from the impugned order that revisionist did not appear before the Court to contest the case filed by the opposite party no.2 and thus, the version of opposite party No. 2 remained unchallenged. It appears that the revisionist has not filed any application before the court below to set aside the ex-parte order and to decide the matter on merits, rather the impugned order is being questioned on merits in the instant revision. In view of these facts and circumstances of the case, prima facie there were no reasons to disbelieve the version of the opposite party no.2. It could not be disputed that since 19.06.2018, she was living separately from her husband/ revisionist and that she has not been provided any maintenance by the revisionist so far. It is also the case of opposite party no. 2 that she has no source of income to maintain herself. In view of all these facts and circumstances and evidence on record, she is entitled for maintenance. Regarding income of revisionist, the opposite party No. 2 has come with a specific case that the revisionist was doing job in J.S.W company and he is getting salary of Rs. 40,000/ pm. Considering all the aspects of the matter, the quantum of maintenance of Rs. 3000/- per month cannot be said to be excessive or arbitrary. It is correct that maintenance has been awarded from the date of application but this fact can not be ignored that opposite party no.2 is an unskilled lady having no source of income to maintain herself and that she is contesting the case for maintenance since last two years and that the revisionist has choose not to participate or contest the proceedings before the court below. It has not been disputed that the opposite party no.2 is living at her parental home and that opposite party no. 2 has not been provided any maintenance by the revisionist so far. In view of all these facts and considering the quantum of maintenance awarded by the court below as well as the income of revisionist, as alleged by the opposite party no. 2, it can not be said that grant 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. 3000/- as maintenance to the opposite party no.2 vide impugned order dated 28.05.2020.
At this juncture it may be stated that object of section 397 Cr.P.C. 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. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. 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.
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.
The instant revision lacks merit and is, accordingly, dismissed.
Order Date :- 30.9.2020 S.Ali