Allahabad High Court
Ankit Namdev vs State Of U.P. And Another on 20 December, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:242102 Reserved On: 02.08.2023 Delivered On: 20.12.2023 In Chamber Case :- CRIMINAL REVISION No. - 2436 of 2022 Revisionist :- Ankit Namdev Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Avijit Saxena Counsel for Opposite Party :- G.A.,Manish Kumar Pandey Hon'ble Ram Manohar Narayan Mishra,J.
1. Heard learned counsel for the revisionist, learned counsel for the opposite party No.2, learned AGA for the State and perused the material placed on record.
2. Instant criminal revision has been preferred against the order dated 3.6.2022, passed by learned Additional Principal Judge, Family Court, Bijnor, in Misc. Criminal Case No.740 of 2016 (Smt. Pooja @ Chandni vs. Ankit Namdev), under Section 125 Cr.P.C. By the impugned order, learned court below has partially allowed the application under Section 125 Cr.P.C. filed by the original applicant Smt. Pooja @ Chandni and awarded Rs.10,000/- as monthly maintenance to the applicant and Rs.10,000/- per month to his minor daughter from the date of filing of application i.e. 22.11.2016. The arrears of maintenance, which is Rs.20,000/- per month in aggregate will be payable in 10 instalments from the date of filing of application to date of judgement and thereafter, the maintenance will be payable on 10th of each month from the date of judgement dated 3.6.2022. The opposite party (present revisionist) has been directed to deposit the amount of maintenance online in the bank account of the applicant. Any amount obtained by the applicant in any other proceedings as maintenance will be subject to adjustment/set off towards maintenance awarded in impugned judgement.
3. The factual matrix of the case in brief are that the applicant filed a Misc. Criminal Case under Section 125 Cr.P.C. before the court of Principal Judge, Family court, with averment that her marriage with the opposite party was solemnized according to Hindu rites and rituals on 10th December, 2013, at Muzaffar Nagar. The parents of applicant spent around Rs.9 lacs in cash, ornaments and gifts in the marriage. However, the opposite party and his family members consisting of his parents, sister and uncle were not satisfied with the gifts and dowry given in the marriage and after some time, started demanding Rs.20 lacs in cash and an Innova Car as additional dowry. They would harass the applicant physically and mentally due to non-fulfilment of demand of dowry. The opposite party, who is her husband even tried to commit unnatural sex with her when she was pregnant with three month. He would also engage in maar-peet with her. The applicant gave birth to a daughter on 19.3.2015, who born out of wedlock of the applicant and opposite party at a hospital in District Bijnor. The applicant is not having any independent source of income for maintenance of herself and her one and 8 months old girl child. The opposite party is a rich person of good health. He operates hand-loom cloths business. He owns private shop in the name of Ankit Textiles at 61-A, Second S.D. College, New Market, Muzaffar Nagar and Namdev Cloth House at 52-A, S.D. College, New Market, Muzaffar Nagar, from which he earns Rs.4 lacs per month. He is an income tax payee. He is able to mainteain the applicant and her minor daughter but has neglected to maintain them. The applicant has sought Rs.30,000/- per month for maintenance of herself and her daughter from the opposite party.
4. Learned court below issued notice to opposite party, who appeared and filed his written statement i.e. Paper No.Ka-34, wherein he has stated that in fact, he treated his wife/applicant properly and affectionately when she came to reside with him after marriage. However, her attitude and behaviour became aggressive in course of time. She used to speak for hours together on mobile phone after departure of the opposite party to the place of his business. She used to tease him. He never refused to fulfill her monetary demands when she was residing with him. His in-laws were interfering in marital life of the opposite party and the applicant, which resulted in matrimonial discord and the relationship of the parties became strained. The applicant became abusive and temperamental. She became very demanding, resulting in unnecessary financial burden on opposite party and her behaviour with the parents and family members of the opposite party became rude. She had also made false complaint against the opposite party regarding commission of unnatural sex against her. She received higher education. She is M.A. in English and has also Diploma in Library Science. She worked as a Librarian in North India Institute of Technology, Nazibabad and earn Rs.9,000/- per month. She also worked as Librarian in IIT College, Rurki and earns Rs.8,000/- per month as salary. Even at present, she is working in R.P. Public School, from where she earns Rs.10,000/- per month. She has also opened a coaching at her parental place fromwhere she earns Rs.40,000/- per month. She deserted opposite party on 25.10.2014 on the occasion of Bhaidooj and went to her parental place on that date, Shge never returned therefrom to the place of opposite party. Even after his repeated requests and cajoling. The opposite party had no option but to file a petition under Section 9 of Hindu Marriage Act for restitution of conjugal rights before Family Court, Muzaffar Nagar but she was not prepared to arrive at a compromise during mediation proceeding. The opposite party is not a business man of hand-loom cloths. He is not operating any private shop. He failed to get any employment. He works as labourer to earn his livelihood. He also discharges burden of maintaining his physically disable sister Julie. He is not in a position to pay the maintenance awarded in impugned order. His annual income is only Rs.49480/- and accordingly his monthly income is Rs.4123/-. Therefore, the opposite party himself is not able to maintain himself and discharge his family responsibilities out of this meagre income.
5. Both the parties adduced oral and filed respective documents in support of their respective claims and defence. Learned court below after considering the submissions of learned counsel for the parties and appreciating the evidence on record, gave finding to the effect that Kumari Ishani is minor daughter of the applicant and opposite party Ankit Namdev. The applicant was compelled to live separately from her husband/opposite party for sufficient reason. The applicant has stated that the opposite party had instituted a divorce suit in which a decree of divorce has been passed, therefore, it is now not possible for the parties to live together. Under provisions of Section 125 Cr.P.C. even a divorced wife is also included within the term "any person" who is entitled to receive maintenance and even a divorced wife will be treated as wife till she undergoes re-marriage for the purposes of Section 125 Cr.P.C. to receive maintenance from her husband. A criminal case is also pending between the parties registered vide Criminal Case No.2185 of 2017, under Sections 323, 504, 506 IPC. This case was lodged by the sister of opposite party against her brother, father and other family members. A chargesheet has been filed in that case also. An N.C.R. has also been lodged at the instance of Anil Namdev, father of opposite party against the applicant and her family members vide NCR No.90 of 2017, under Sections 323, 504, 506 IPC whereas a complaint case No.3476 of 2017, Pooja vs. Ankit Namdev has been filed by the Pooja Namdev against the opposite parties. All theses facts show that the relationship of the parties is strained. However, every effort of mediation with a view to arrive at a mutually satisfactory settlement failed. The facts and circumstances suggests that the opposite party neglected to maintain the applicant and their living together as husband and wife is not possible. So far as the economic resources of the applicant is concerned, the learned court below has observed that this is true that the applicant is Post Graduate lady but only due to the fact that she is having higher educational qualification, it cannot be presumed that she is having any employment or she is engaged in any business. She has admitted that she worked as a teacher in R.R. Public School, Raipur, Sadat, prior to marriage, from where she used to earn Rs. 10,000/-, per month as salary but no documentary evidence has been filed by the opposite party in support of any earning of the applicant. In the present case, it appears that she was earlier engaged in some job but presently she is jobless and in this situation, the opposite party cannot avoid his responsibility to maintain her and her minor daughter.
6. Learned court below has also observed while deciding Issue No.4 that the applicant has stated that the opposite party is a rich and affluent person. He is operating his own shops in the city of Muzaffar Nagar. He is a business man, dealing in hand-loom cloths. He is an income tax payee. However, the opposite party has denied this averment and stated that he is a labourer and man of meagre economic resources. He earns only Rs.4123/- in a month. He had filed an affidavit in compliance of directions of Hon'ble Apex Court given in Rajnesh v. Neha, (2021) 2 SCC 324, in which he has shown that he works as a peon in A.P. Public School, Muzaffar Nagar from where he earns Rs.4123/- per month as salary. He also possesses a house. He has filed his income tax return form for assessment years 2018-2019, 2019-2020, 2020-2021, which shows that he is a man of sufficient resources. He has neglected to maintain his wife and minor daughter, even having sufficient economic resources. On the other hand, the applicant is living at her parental house since year 2018. Her daughter also born there. She is receiving education living together with her mother. The applicant is bearing maintaining responsibilities of maintaining of herself and her daughter and also imparting education to her. Keeping in view the facts and circumstances, the learned court below has awarded monthly maintenance to the applicant and her minor daughter to the tune of Rs.10,000/- each per moth from the date of filing of application.
7. Learned counsel for the revisionist submitted that the applicant/respondent No.2 deliberately deserted the revisionist/husband and refused to join him, even after much persuasion. The revisionist was compelled to file a suit for divorce registered as Divorce Case No.918 of 2019 (Ankit Namdev vs. Pooja Namdev), under Section 13 of Hindu Marriage Act, in which family court has given a categorical finding that after appreciating evidence adduced by the parties that the respondent (Smt. Pooja) has deserted the petitioner without any reasonable cause. She did not come back to the place of petitioner even after his much efforts and persuasion of his close relatives. Therefore, the applicant is not entitled to any maintenance in view of Section 125 Cr.P.C., which provides that "No Wife shall be entitled to receive an allowance for the maintenance or interim maintenance and expenses of proceeding, as the case may be, 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." Sub-section (5) of Section 125 Cr.P.C. provides that "On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order."
8. Learned counsel for the revisionist further submitted that one time lump-sum amount of interim maintenance was paid by the revisionist to applicant/opposite party No.2 herein, which is duly endorsed in the order-sheet of the court below but said aspect of the matter has not been disclosed by the court below while passing impugned order and instead the revisionist has been directed to pay maintenance from the date of application, which is absolutely illegal and erroneous. The opposite party No.2 has mentioned the income of the revisionist differently in different proceedings. She has stated the income of the revisionist as Rs.4 lacs per month in proceeding under Section 125 Cr.P.C. whereas she has mentioned his income as Rs.1 lac per month in application for interim maintenance. The court below has given finding that it is not necessary that any educated lady may get some employment but admittedly the court has failed to consider the income of the revisionist while passing impugned order. The revisionist is in fact, a low paid employee and this is physically impossible for him to pay such exorbitant amount of Rs.20,000/- per month as maintenance to the applicant/opposite party No.2.
9. The court below has given no clear finding regarding actual source of income of the revisionist. The finding regarding income of the revisionist is based on guess work and not on evidence. There is no rational behind fixing an amount of Rs.20,000/- per month as maintenance from the date of filing of application, payable to the applicants.
10. Per contra, learned counsel appearing for respondent No.2 submitted that the revision is devoid of merits. There is no infirmity, irregularity or illegality in the impugned order passed by learned court below. The revisionist has filed present revision only with a view to stall the payment of maintenance awarded in impugned order. The impugned order is well reasoned, just and fair. It deserves no interference by this Court. The revisionist is a man of handsome earning. He has also concealed his actual income before the court below as well as before this Court.
11. Learned counsel appearing for respondent No.2 placed reliance on a judgement of Apex Court in Criminal Appeal No.1865 of 2022 (Kiran Tomar and Others vs. State of Uttar Pradesh and Another), wherein the Hon'ble Apex Court has set aside the judgement of High Court and remanded the matter to High Court for fresh consideration. High Court had set aside the judgement of family Court on the ground that there was huge difference regarding income of the husband as shown in his income tax return and as claimed and as ascertained by family court. The family Court had recorded finding that income of the revisionist was Rs.2 lacs per month when there was nothing on record to demonstrate the same. Hon'ble Apex Court in said judgement observed in Paragraph No.10, as under:-
"10. On the first aspect, it is well-settled that income tax returns do not necessarily furnish an accurate guide of the real income. Particularly, when parties are engaged in a matrimonial conflict, there is a tendency to underestimate income. Hence, it is for the Family Court to determine on a holistic assessment of the evidence what would be the real income of the second respondent so as to enable the appellants to live in a condition commensurate with the status to which they were accustomed during the time when they were staying together. The two children are aged 17 and 15 years, respectively, and their needs have to be duly met."
12. On the other hand, learned counsel for the revisionist placed reliance on a judgement of Delhi High Court passed in the case of Archita @ Anu Seth vs. Sunil Seth in Criminal Revision P. No.455 of 2015, decided on 11.1.2019. In that case, the petitioner wife challenged the impugned judgement dated 7.5.2015, whereby the application of the petitioner under Section 125 Cr.P.C. claiming maintenance has been dismissed inter-alia, on the ground that the petitioner has failed to show that she had sufficient cause for living separately from her husband. Parties were married on 31.01.2004 according to Hindu rites and Ceremonies. Thereafter, disputes arose and parties started living separately since 03.04.2004. It was an admitted position that decree of divorce has been granted on a petition filed by the respondent-husband on 12.03.2015 on the ground of cruelty as well as desertion. This decree of divorce has been upheld upto the Supreme Court. Matrimonial proceedings between the parties were initiated by both sides. Subject proceedings were initiated by the Petitioner under Section 125 Cr. P.C. for interim maintenance in the year 2007. In terms of Section 125 (4) Cr. P.C., a wife is not entitled to receive any maintenance, inter-alia, if without any sufficient reason she refuses to live with her husband. Delhi High Court has observed as under:-
"9. In Rohtash Singh Vs. Ramendri & Ors. (2000) 3 SCC 180, Supreme Court while interpreting Section 125(4) Cr. P.C. has held that all the circumstances contemplated by sub-section (4) of Section 125 Cr. P.C. presuppose the existence of matrimonial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to an end. The Supreme Court negated the contention of counsel for the petitioner therein that once a decree for divorce was passed against the respondent and marital relations between the petitioner and the respondent came to an end, the mutual rights, duties and obligations should also come to an end and as such the obligation of the husband to maintain a woman with whom all relations had come to an end should also be treated to have come to an end.
10. The Supreme Court in Rohtash Singh (Supra) while negating the contention held that a woman has two distinct rights for maintenance. (i) As a wife, she is entitled to maintenance unless she suffers from any of the disabilities indicated in Section 125 (4) Cr. P.C. (ii) In another capacity, i.e., as a divorced woman, she is again entitled to claim maintenance from the person of whom she was once the wife. A woman after divorce becomes a destitute and if she cannot maintain herself or remains unmarried, the man who was once her husband continues to be under a statutory duty and obligations to provide maintenance.
11. The Supreme Court further went on to hold that once decree of divorce was passed on the ground of desertion by the wife, she would not be entitled to maintenance for any period prior to the passing of the decree under Section 13 of the Hindu Marriage Act.
12. In view of the law as laid down by the Supreme Court in Rohtash Singh (Supra), in the present case as decree of divorce has been passed on the ground of desertion on 12.03.2015 and the said decree has been upheld upto the Supreme Court, the petitioner clearly is disentitled to maintenance for the period prior to the passing of the decree of divorce.
13. Further in terms of the law laid down in Rohtash Singh (Supra) by the Supreme Court as noticed above, she would be entitled to maintain an application for maintenance under Section 125 Cr. P.C. provided she satisfies the condition mentioned in section 125 (1)(a) Cr.P.C."
13. With above observations, the Delhi High Court dismissed the petition filed by the petitioner-wife on the ground that no infirmity was found in the view taken by the trial court in rejecting the application of the petitioner filed under Section 125 Cr. P.C. However, the High Court clarified that the petitioner would still be entitled to file and maintain an application under Section 125 Cr. P.C. in terms of the decision of Supreme Court in Rohtash Singh (Supra), for the period post the decree of divorce (i.e. post 12.03.2015) provided she is able to satisfy the condition of Section 125 (1)(a) Cr. P.C. that she is unable to maintain herself.
14. Section 125 Cr. P.C. reads as under:
"125. Order for maintenance of wives, children and parents.
(1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, 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.
Explanation.- For the purposes of this Chapter,-
(a) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority;
(b) " wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance.
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month' s allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife' s refusal to live with him.
(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.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order."
15. In present case, application for maintenance under Section 125 Cr.P.C. was filed by the opposite party No.2 during subsistence of marriage between the parties on 22.11.2016. She had stated therein that she was compelled to live separately from her husband as she was continuously subjected to matrimonial cruelty by her husband and in-laws. From perusal of impugned judgement, it appears that opposite party No.2 has been living separately from her husband since 25.10. 2014.
16. Learned counsel for the revisionist produced a certified copy of decree of divorce, passed by learned Additional Principal Judge in Matrimonial Case No.918 of 2019, under Section 13 of Hindu Marriage Act, wherein it is held that the respondent-wife deserted the petitioner without reasonable cause and lived separately from her husband at her parental place since 25.10.2014 due to which the petitioner was compelled to file a petition for divorce on 26.10.2016 before the Court. The opposite party No.2 has filed a maintenance case No.740 of 2016 i.e. (present case), in which efforts were made to get a compromise arrived between the parties and the petitioner was prepared to take her alongwith him but opposite party No.2 (wife) was not prepared for compromise.
17. It is not clear as to whether any appeal has been filed by the opposite party No.2 (Smt. Pooja) against the said divorce decree before this Court. This fact is also not recorded whether any permanent alimony was granted to opposite party No.2 (wife) in this divorce decree. This divorce decree is not mentioned in impugned judgement and order dated 3.6.2022 passed by Principal Judge, Family Court, Bijnor. Thus, the position is that a divorce decree was granted by the competent court on petition filed by present revisionist against opposite party No.2 during pendency of maintenance proceeding under Section 125 Cr.P.C., in which impugned judgement and order has been passed, subsequent to passing of decree of divorce in favour of the revisionist.
18. In Rohtash Singh Vs. Ramendri & Ors. (2000) 3 SCC 180, the fact of the case were that the petitioner who was a member of the Indian Army was married with the respondent on 10th of May, 1990. Since the petitioner was posted away from his home, he left the respondent with his parents living jointly with his elder brother and his family at the family house in Village Kota, Police Station Galaoti, Tehsil and District Meerut. This, according to the petitioner, was not liked by the respondent who insisted that the petitioner should take leave from Army and stay with her at her parent's house. It is said that in 1991, the respondent left the petitioner's family house and went away to her father's house. She refused to come back to the family house of the petitioner in spite of petitioner's father and elder brother having gone to the respondent to persuade her to come back. On her refusal to come back, a notice was sent to the respondent on 5th of August, 1991 for restitution of conjugal rights but the respondent still did not come back to the petitioner's family house in District Meerut and, therefore, in 1993, the petitioner filed a petition under Section 13 of the Hindu Marriage Act for dissolution of the marriage on the ground of desertion. The respondent in her defence raised various pleas including mal-treatment and cruelty as also a demand by the petitioner for dowry. The Family Court, Meerut, decreed the suit of the petitioner on 15th of July, 1995 and passed the decree of divorce on the ground of desertion by the respondent. During the pendency of the suit for divorce, the respondent had filed an application for maintenance under Section 125 of the Code of Criminal Procedure on 28th of May, 1993 which was allowed by the Family Court, Meerut on 13th of March, 1997 in spite of the fact that the judgment by which a decree for divorce was passed in favour of the petitioner on the ground of respondent's desertion was brought to the notice of the Family Court. The Judgment passed by the Family Court, Meerut was challenged by the petitioner in a Revision tiled in the High Court but the Revision was dismissed. Against the judgement of High Court, the petitioner had filed an SLP before the Hon'ble Apex Court. Hon'ble Supreme Court observed that under Section 125(4) Cr.P.C., the wife shall not be entitled to receive any allowance for the maintenance or interim maintenance and expenses of proceeding, as the case may be, from her husband on three grounds:- (1) if she is living in adultery; (2) if without any sufficient reason, she refuses to live with her husband (3) if they are living separately by mutual consent. Thus, all the circumstances contemplated by Sub-section (4) of Section 125 Cr. P.C. presuppose the existence of matri- monial relations. The provision would be applicable where the marriage between the parties subsists and not where it has come to an end. Taking the three circumstances individually, it will be noticed that the first circum-stance on account of which a wife is not entitled to claim Maintenance Allowance from her husband is that she is living in adultery. Now, adultery is sexual intercourse of two persons, either of whom is married to a third person. This clearly supposes the subsistence of marriage between the husband and wife and if during the subsistence of marriage, the wife lives in adultery, she cannot claim Maintenance Allowance under Section 125 of the Code of Criminal Procedure. Similarly on the second ground on which she would not be entitled to Maintenance Allowance is the ground of her refusal to live with her husband without any sufficient reason. This also presupposes the subsistence of marital relations between the parties. If the marriage subsists, the wife is under a legal and moral obligation to live with her husband and to fulfil the marital obligations. She cannot, without any sufficient reason, refuse to live with her husband. "Sufficient reasons" have been interpreted differently by the High Courts having regard to the facts of indivisual cases. We are not required to go into that question in the present case as admittedly the marriage between the parties came to an end on account of a decree for divorce having been passed by the Family Court. Existence of sufficient cause on the basis of which the respondent could legitimately refuse to live with the petitioner is not relevant for the present case. In this situation, the only question which survives for consideration is whether a wife against whom a decree for divorce has been passed on account of her deserting the husband can claim Maintenance Allowance under Section 125 Cr. P.C. and how far can the plea of desertion be treated to be an effective plea in support of the husband's refusal to pay her the Maintenance Allowance. Admittedly, in the instant case, the respondent is a divorced wife. The marriage ties between the parties do not subsist. The decree for divorce was passed on 15th of July, 1995 and since then, she is under no obligation to live with the petitioner. But though the marital relations came to an end by the divorce granted by the Family Court under Section 13 of the Hindu Marriage Act, the respondent continues to be "wife" within the meaning of Section 125 Cr.P.C. on account of Explanation (b) to Sub-section (1) which provides as under :-
"Explanation. - For the purposes of this Chapter -
(a) ...................................................................
(b) "wife" includes woman who has been divorced by, or has obtained a divorce from her husband and has not remarried."
19. On account of the Explanation quoted above, a woman who has been divorced by her husband on account of a decree passed by the Family Court under the Hindu Marriage Act, continues to enjoy the status of a wife for the limited purpose of claiming Maintenance Allowance from her ex-husband. Claim for maintenance under the first part of Section 125 Cr.P.C. is based on the subsistence of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to Sub-section (1) of Section 125 Cr. P.C. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to Maintenance Allowance. The Calcutta High Court in Sukumar Dhibar v. Smt. Anjali Dasi, (1983) Crl. L.J. 36. had an occasion to consider an identical situation where the husband had obtained divorce on the ground of desertion by wife but she was held entitled to Maintenance Allowance as a divorced wife under Section 125 Cr.P.C. and the fact that she had deserted her husband and on that basis a decree for divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife. The Hon'ble Apex Court had concluded that since the decree of divorce was passed on the ground of desertion by respondent, she would not be entitled to Maintenance for any period prior to the passing of the decree under Section 13 of the Hindu Marriage Act.
20. In the present case, the allegations and counter allegations are made by the parties against each other. The opposite party No.2 (wife) has levelled serious allegations of commission of matrimonial cruelty against the revisionist, who was her husband at the time of filing of application under Section 125 Cr.P.C. The revisionist has levelled specific allegations of desertion acted by wife against him. The family Court in matrimonial suti filed by the revisionist-husband found wife guilty of committing matrimonial offence of desertion and has granted decree of divorce in favour of the revisionist against opposite party no.2 vide judgement and order dated 12.02.2020, passed in said matrimonial case. Therefore, in the light of judgement of Hon'ble Apex Court in the case of Rohtash Singh Vs. Ramendri & Ors. (supra), the opposite party will be entitled to obtain maintenance from her husband from the date of passing of decree under Section 13 of Hindu Marriage Act as the matrimonial relationship between the parties dis-continued since then. However, would not be entitled to obtain maintenance from date of filing of application to date of passing of said decree of divorce, accordingly.
21. This fact also requires consideration that in ITR filed by the revisionist for assessment year 2019-2020, 2020-2021 and 2021-2022, it appears that he is an employee of A.P. Public School from which his annual salaried income is shown as Rs.48,000/- in ITR of Assessment Year 2020-2021 and 2021-2022. The ITR also reveals that he is engaged in business of cloth trading. Balance sheet shows his assets and turn over.
22. Learned trial court while discussing the amount of maintenance has not ascertained the actual income fo the revisionist. However, on the basis of fact that the opposite party has claimed to be working as a Peon in A.P. Public School, Muzaffar nagar and also from perusal of ITR for Assessment Year 2018-2019, 2019-2020, 2020-2021, it appears that he is possessed of sufficient source of income. Learned court below has accordingly granted Rs.10,000/-each, to the applicant and her daughter as maintenance from date of filing of application dated 22.11.2016 and onwards.
23. Considering totality of facts and circumstances of the case and also the fact that matrimonial court has found opposite party No.2 as guilty of matrimonial offence of desertion, the impugned judgement and order is modified in the following manner:-
"The revisionist is directed to pay Rs.8,000/- per month as maintenance to opposite party No.2 namely Smt. Pooja alias Chandni and Rs.5,000/- per month to his minor daughter Ishani (till her attainment of majority) from the date of decree of divorce dated 12.02.2020. The amount obtained by the respondent No.2 as maintenance in compliance of impugned order or any previous order in Misc. Criminal Case No.740 of 2016 (Smt. Pooja @ Chandni vs. Ankit Namdev), shall be set off/adjusted towards arrears of maintenance payable to her. The arrears of maintenance will be calculated at the rate of Rs.13000/-, per month from the date of decree of divorce i.e. 12.02.2020 to December 2023, which will be payable in three equal monthly instalments commencing from January, 2024. The revisionist will keep on paying the maintenance at the rate of Rs.13,000/-, to the respondent No.2 on regular basis since January, 2024, subject to terms and conditions imposed in impugned order.
24. The revision stands partly allowed with above modifications.
Order Date :- 20.12.2023 Kamarjahan