Allahabad High Court
Vidya Sagar Pandey vs State Of U.P. And Another on 2 January, 2023
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 64 Case :- CRIMINAL REVISION No. - 2215 of 2022 Revisionist :- Vidya Sagar Pandey Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Kamlesh Kumar Tiwari,Amrish Tiwari Counsel for Opposite Party :- G.A. Hon'ble Saumitra Dayal Singh,J.
Heard Shri Amrish Tiwari, learned counsel for the revisionist and Shri Sanjay Singh, learned counsel for the State.
Present revision has been filed against the order dated 21.4.2022 passed by the Principal Judge, Family Court, Ballia whereby the learned Court below has awarded the monthly maintenance @ Rs.7,000/- to the opposite party w.e.f. from the date of her application filed under Section 125 Cr.P.C. i.e. 24.4.2019.
Submission of learned counsel for the applicant is that opposite party had started living separately without sufficient reason. Therefore, by virtue of the bar created by Section 125(4) Cr.P.C., she is not entitled to any maintenance. Second, it has been submitted that opposite party did not lead any evidence to establish monthly income as Rs.50,000/- of the applicant. In any case, the award of maintenance is @ 7,000/- per month is not based on any material or evidence.
Having heard learned counsel for the parties and perused the record, no good ground is made out to exercise revision jurisdiction of this Court.
Before the lower Court below, the opposite party specifically pleaded that she had been sent away from her maternal home against her wishes. The exact circumstances or manner in which she had been sent away may not have any material bearing on her right to claim maintenance. The exception created by Section 125(4) Cr.P.C. would come into play only if a person claiming maintenance was found living in adultery or separately without sufficient reason. The burden to establish such fact as may create an exception in favour of the person, liable to provide maintenance, would remain on that person.
Being an exception to the Rule (to provide for maintenance), the burden to prove such facts would remain on the person invoking the exception. Here, the applicant.
In absence of any evidence led by the applicant to establish that the opposite party had left her matrimonial home of her own free will or without sufficient reason, the impugned order cannot be faulted for that reason.
On the second aspect, it is seen, the claimant/opposite party had led the oral evidence wherein she had described the business of the applicant as retail trade in various items. She has also described the income of the applicant @ Rs.50,000/- per month i.e. Rs.6,00,000/- per annum. Neither the applicant cross-examined the opposite party on such oral evidence led by her nor he led any other evidence to either rebut the basis of the assertion made by opposite party or the estimation of the income.
By merely stating that the applicant was earlier employed at Delhi and has since left the job, the applicant did not discharge the burden to either rebut the claim set up by the opposite party or to establish any lesser income being earned by him. In that regard, the fact of the income of the petitioner was a fact that could have been established by him by leading evidence in the shape of income tax returns, Bank statements etc. It is not a case of the applicant that he had not filed any tax return etc. The objection filed by the applicant is silent, to that extent. In context of the above, the claim of the applicant that he had started earning less upon having left his job at Delhi, is a self serving statement. A man's income is a special fact in his own knowledge. When confronted with such proceedings. It is always open to him and to lead appropriate evidence to establish such fact. Having failed to lead any evidence, the applicant cannot turn around and assert that the court below has erred in estimating his income on the strength of unrebutted statement of the claimant/respondent.
Once the statement of the opposite party remained unrebutted and the applicant failed to lead any positive evidence as to his income, certain guess work had to be made by the court below to reach a just and proper figure on which the applicant's income may have been estimated.
Here against claim of annual income of Rs.6,00,000/- (made by the opposite party) which statement remained unrebutted, the learned Court below has estimated the annual income of the applicant as Rs.3,00,000/-. Accordingly, it has awarded a monthly maintenance of Rs.7,000/- per month. There is no error in such approach adopted by the learned court below. The finding recorded by it cannot be described as either perverse, arbitrary or excessive.
Further submission of learned counsel for the revisionist that the award of the maintenance should have been effective from the date of the order also, cannot be sustained. The rule of law is to provide maintenance from the date of application. By way of exception, it may be made effective from the date of the order for reasons to be disclosed by the Court.
Merely, because the claimant may have survived through by availing assistance against family loans etc. would never disentitle such claimant(s) to award of maintenance from the date of application. If such circumstances arose, as may have dis-entitled the claimant/respondent to maintenance amount from the date of her application, it was for the applicant to raise such plea at appropriate stage before the learned court below. That has not been done.
In view of the above, no good ground is made out. Therefore, the present criminal revision is dismissed.
Order Date :- 2.1.2023 Rishabh