Allahabad High Court
Smt. Raj Kumari vs State Of U.P. And Another on 20 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 1494, 2020 (1) ALJ 381 2020 (110) ACC (SOC) 92 (ALL), 2020 (110) ACC (SOC) 92 (ALL)
Author: Narendra Kumar Johari
Bench: Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment Reserved On 11/09/2019 Judgment Delivered on 20/09/2019 Court No. - 82 Case :- CRIMINAL REVISION No. - 3025 of 2016 Revisionist :- Smt. Raj Kumari Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Irfan Hasan,Kamlesh Kumar Tiwari,Kripa Shankar Pandey Counsel for Opposite Party :- G.A. Hon'ble Narendra Kumar Johari,J.
1. The present revision has been filed by revisionist- Raj Kumari against the judgment and order dated 22.7.2016 passed by Principal Judge Family Court, Agra in Criminal Case No.812 of 2014 "Smt. Raj Kumari Vs. Daya Sankar" under Section 125 Cr.P.C.
2. The revisionist challenged the order under revision mainly on two grounds:-
(a) the Sub-ordinate Court has awarded the amount of maintenance from the date of order which is not proper, it should be from the date of filing of the application under Section 125 Cr.P.C.;
(b) the amount of compensation fixed by the court is meagre and is liable to be enhanced.
The brief fact of the case is that revisionist is wife and opposite party no.2 is husband. It has been mentioned that the revisionist was married with opposite party no.2 on 16.2.2010, at the time of marriage, father of the revisionist had given sufficient articles as dowry like jewelries and cash amount Rs.50,000/- as according to his capacity but opposite party no.2 and the family members of opposite party no.2 were not satisfied by the dowry given by father of the revisionist. They were demanding motor-cycle and Rs.50,000/- cash as additional dowry. In furtherance and their demand opposite party no.2 and his family members were started torturing to the revisionist. In continuance of her torture, on 23.5.2014 opposite party no.2 and his family members locked to revisionist and her sister Sanju in a room, beaten and threaten for life. On the same date opposite party dropped to revisionist and her sister near St. John's Chauraha, Agra and told that unless his aforesaid demand of dowry fulfill she will stay to his father's home. Further on 12.9.2014 father of revisionist reached at the residence of opposite party no.2 alongwith his relatives for compromise. Opposite party no.2 and their family members again demanded motor-cycle and cash money as additional dowry and started abusing. The opposite party and his family member also not accepted to revisionist at their residence. After her desertion, opposite party no.2 has neither taken any care of revisionist, nor given any money for her maintenance. Opposite party no.2 is doing the business of ornament making and earns Rs.50,000/-. He possess some agricultural land also. His income from agricultural land is Rs.5,00,000/- per annum. The revisionist is a domestic lady. She is not doing any work and absolutely depend on her father. The revisionist prayed that she may be provided Rs.10,000/- per month as maintenance from her husband.
3. During the proceedings in trial court, notice for appearance was issued to opposite party which was served on him but he did not appeared and the court proceed ex-party against him.
4. In ex-parte hearing revisionist/applicant filed affidavit in support of her application and the court concerned has passed the order dated 22.7.2016 that from the date of order opposite party no.2 will pay amount of Rs.2,500/- per month for the maintenance of revisionist/applicant. The revisionist/ applicant challenged the said order mainly on the two grounds as noted above.
5. During the proceeding of the revision the notice was issued to opposite party no.2 which was served personally but opposite party did not put his appearance before the court.
6. Heard learned counsel for the revisionist and perused the record. Learned counsel for the revisionist has submitted the following case laws:-
1. Shail Kumar Devi Vs. Krishan Bhagwan Pathak @ Kishun B Pathak decision dated 28.7.2008 [2008 LawSuits (SC) 1030].
2. Jaiminiben Hirenbhai Vyas & Anr Vs. Hirenbhai Rameshchandra Vyas & Anr decision dated 19.11.2014 [2014 LawSuit (SC)916]
7. The learned court below while considering the averments of application relied on affidavit of revisionist and concluded that although applicant/revisionist has not filed any documentary evidence regarding the income of opposite party but it appears that opposite party no.2 is capable to provide maintenance to his wife which is his moral duty also. The court has also concluded that revisionist/applicant is a domestic lady, she is not doing any work and is depend on her father.
8. If a husband having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself, a Magistrate of competent jurisdiction may pass order under Section 125 Cr.P.C. against husband to make a monthly allowance for the maintenance of his wife. The provisions of 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:
Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub- section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.
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) Any such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceedings, as the case may be.
(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."
9. The right of a destitute wife to get maintenance is essentially a civil right accordingly the remedy provided under Chapter IX of Cr.P.C. The procedure laid down in this Chapter is enacted as a measure of social justice and are dealt with summoning in a criminal Court for the purposes of speedy disposal on grounds of convenience and social order.
10. Sub-clause 2 of Section 125 Cr.P.C. make the provisions that allowance shall be payable either from the date of order or from the date of application for maintenance. This sub-clause provides discretionary power to Magistrate but this power is not absolute. Discretion inherits judicial discretion, therefore the law requires that if the Court passes the order of maintenance payable not from the date of application but from the date of order than in that case the court has to give reason for that.
11. Although, the Revisional Court cannot interfere in the finding of fact but when it is shown that impugned order has been passed without judicial application of mind, the order can be challenged under revisional jurisdiction. In present case, the court of Principal Judge Family Court, Agra has not given any reason for passing the order to pay amount of maintenance from the date of order.
12. Certified copy of application under Section 125 Cr.P.C. is available on record at page No.14 which indicates that on 12.9.2014 opposite party no.2 has not permitted petitioner to enter in her matrimonial house. The petition was filed on dated 15.9.2014. On the date of application the petitioner was residing in deserted condition which has been specifically mentioned in para 7 of the application also. The above fact is sufficient to infer that petitioner was not being maintained by her husband, therefore, it appears prima facie that she was entitled to get maintenance money from the date of filing of application under Section 125 Cr.P.C..
13. In the case of Jaiminiben Hirenbhai Vyas & Anr. Vs Hirenbhai Rameshchandra Vyas & Anr. [2014 LawSuits (SC) 916 decided on 19 November, 2014. It has been held by the Hon'ble Apex Court in para 8 and 9:-
"8. In Shalil Kumari Devi Vs. Krishan Bhagawn Pathak this Court dealt with the question as to from which date a Magistrate may order payment of maintenance to wife, children or parents. In Shail Kumar Devi, this Court considered a catena of decisions by the various High Courts, before arriving at the conclusion that it was incorrect to hold that, as a normal rule, the Magistrate should grant maintenance only from the date of the order and not from the date of the application for maintenance. It is, therefore, open to the Magistrate to award maintenance from the date of application. The Court held, and we agree, that if the Magistrate intends to pass such an order, he is required to record reasons in support of such Order. Thus, such maintenance can be awarded from the date of the Order, or, if so ordered, from the date of the application for maintenance, as the case may be. For awarding maintenance from the date of the application, express order is necessary.
9. In the case before us, the High Court has not given any reason for not granting maintenance from the date of the application. We are of the view that the circumstances eminently justified grant of maintenance with effect from the date of the application in view of the finding that the Appellant had worked before marriage and had not done so during her marriage. There was no evidence of her income during the period the parties lived as man and wife. We, therefore reverse the Order of the High Court in this regard and direct that the respondent shall pay the amount of maintenance found payable from the date of the application for maintenance. As far as maintenance granted under Section 24 of the H.M. Act by the Courts below is concerned, it shall remain unaltered."
(emphasized )
14. In the case of Shail Kumari Devi & Anr Vs Krishan Bhagwan Pathak @ Kishun B [2008 LawSuit(SC) 1030] decided on 28 July, 2008. It has been held by Hon'ble Supreme Court in para 44:-
"44. In our considered opinion, the High Court is not right in holding that as a normal rule, the Magistrate should grant maintenance only from the date of the order and not from the date of the application for maintenance. And if he intents to pass such an order, he is required to record reasons in support of such order. As observed in K. Sivaram, reasons have to be recorded in both the eventualities. The Court was also right in observing that wherever Parliament intended the Court to record special reasons, care had been taken to make such provision by requiring the Court to record such reasons. "
(emphasized )
15. Revisionist/applicant has mentioned in para 9 of the application that, opposite party is doing the job of making gold and silver ornaments and earns Rs.50,000/- apart from that he has agricultural land also by which he earns Rs.5,00,000/- per annum. Admittedly the revisionist/applicant had not filed any documentary evidence regarding business or regarding ownership of agricultural land, but there is no ground to presume that opposite party no.2 was not a physically fit person. Learned lower court has also concluded in its order/judgment dated 22.7.2016 that opposite party no.2 is capable and competent person. If a man is healthy and able bodied he must be held to possess sufficient money to support his wife, children and parents. Sufficient means should not be confined to the actual pecuniary resources but should have reference to the earning capacity. The wording "Means" as used in the provision does not mean the tangible property or income only but also his capacity, potentialities and status of living.
It has been held by this court in the case of Chandrapal vs Harpyari And Anr. reported in 1991 CRI. L. J. 2847 that-
"13. In the case of Mohammad Ayyub Vs. Zaibul Nissa, 1974 (Vol. 2) Criminal Law Journal 1237 this Court held that the quantum of allowance directed to be paid by the husband to the wife has relevance to his means. Where the Magistrate does not give any thought to the question as to what are the means existing or potential of the husband Justifying an order for payment or allowance to his wife, the order is liable to be set aside. "
(emphasized ) On this point the another Bench of Orissa High Court in the case of Basanta Kumari Mohanty Vs. Sarat Kumar Mohanty reported in 1982 CRI. L.J. 485 held in para 7 that:-
"7. No doubt an order Under Section 125 can be passed only if a person having sufficient means neglects or refuses to maintain his wife, child, parents etc. It is, however, well settled that the expression 'means' occurring in Section 125 does not signify only visible means, such as, real property or definite employment and if a man is healthy and able-bodied, he must be held to be possessed of means to support his wife, child etc. The Courts have gone to the extent of laying down that the husband may be insolvent or a professional beggar or a minor or a monk, but he must support his wife so long as he is able-bodied and can eke out his livelihood. "
Therefore, if the opposite party has not put his appearance in the case and led any evidence regarding his earnings, an inference can be drawn against him on the basis of material available on record.
16. It should not be forgotten that under Section 401 Cr.P.C. a revisional court can make any amendment or any consequential or incidental order that may be just or proper. In this connection provisions of Section 401(1) and 386(e) can be referred to. Provisions of Section 125 Cr.P.C. have been engrafted in Criminal Procedure Code for preventing destitution or vagrancy and providing succour to starving persons. It is to be find out as to what is required by the wife to maintain the standard of living which is neither luxurious nor penury but is modestly consistent with the status of family. In the present case, learned lower Court has awarded Rs. 2,500/- per month has maintenance amount of revisionist. Learned counsel for the revisionist has submitted that from 2014 the revisionist is living in mercy-full condition.
17. Learned lower court has awarded Rs.2,500/- the maintenance amount for the revisionist, accordingly Rs.83.33/- per day comes to revisionist for her maintenance. At present considering the price hike and higher cost of living it cannot be presumed that Rs.83.33/- is sufficient for a lady to maintain herself. In my opinion, the amount fixed by the court below is insufficient as according to present scenario, the revisionist is entitled to receive minimum Rs.5,000/- per month as maintenance.
18. Taking the facts and circumstances of the case into consideration, the judgment of court below dated 22.7.2016 is liable to be modified upto the extent that applicant is entitled to receive Rs.5,000/- per month as maintenance from the date of filing of application under Section 125 Cr.P.C.
19. In the result, the revision is allowed.
Order Date :- 20.09.2019 Krishna