Allahabad High Court
Smt. Bushara Khan vs State Of U.P. And Another on 15 April, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:65353 Court No. - 77 Case :- CRIMINAL REVISION No. - 2203 of 2023 Revisionist :- Smt. Bushara Khan Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Kunjesh Kumar Dubey Counsel for Opposite Party :- G.A.,Mohd. Azam Connected with Case :- CRIMINAL REVISION No. - 2083 of 2023 Revisionist :- Nazim Khan Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Chandra Prakash Pandey,Mohd. Azam Counsel for Opposite Party :- G.A.,Kunjesh Kumar Dubey Hon'ble Rajeev Misra,J.
Heard Mr. Kunjesh Kumar Dubey, the learned counsel for revisionist, the learned A.G.A. for State opposite party-1 and Mr. C.P. Pandey, the learned counsel representing opposite party-2 in Criminal Revision No. 2203 of 2023 (Smt. Bushara Khan Vs. State of U.P. and Another).
I have also heard Mr. C.P. Pandey, the learned counsel for revisionist, the learned A.G.A. for State opposite party-1 and Mr. K.K. Dubey, the learned counsel representing opposite party-2 in Criminal Revision No. 2083 of 2023 (Nazim Khan Vs. State of U.P. and Another).
Aforementioned criminal revision have been filed challenging a common order dated 14.3.2023. passed by Principal Judge, Family Court, Rampur in Case No. 232 of 2020 (Smt. Bushra Khan Vs. Nazim Khan) under Sections 125 Cr.P.C. Police Station- Bilaspur, District Rampur, whereby Court below has allowed the claim for payment of monthly maintenance raised by the wife at the rate of Rs. 7,000/- from the date of representation of written statement/objection dated 23.11.2021. The wife has challenged the order impugned on the grounds that amount of maintenance awarded by Court below is not only irrational inadequate and insufficient and secondly the same has been admissible from the date of filing of written statement/objection.
Criminal Revision No. 2083 of 2023 has been filed by husband on the ground that amount of maintenance awarded by Court below is irrational, illegal, arbitrary harsh and exorbitant. Considering the facts and circumstances of the case, the amount of monthly maintenance awarded by Court below is liable to be scaled down.
Mr. K.K. Dubey, the learned counsel for revisionist- Smt. Bushara Khan contends that in view of law laid down by Supreme Court in Rajnesh Vs. Neha and Another, reported in (2021) 2 SCC 324, the amount of maintenance has to be awarded from the date of application. In view of above, the Court below has erred in law in directing the payment of monthly maintenance shall be payable from the date of filing of written statment/objection i.e. 23.11.2021. He, therefore contends that aforesaid conclusion drawn by Court below is liable to be set aside. It is then contended that the husband i.e. opposite party-2 is working in an international hotel but he neither filed any evidence with regard to his salary/income or any affidavit in compliance of judgement of Supreme Court in Rajnesh (Supra), disclosing his status/income. On the aforesaid premise, he contends that Court below should have drawn an adverse inference and thereafter returned an adverse derivative finding regarding amount of maintenance, liable to be awarded in favour of revisionist which should be in consonance with the status of opposite party-2. The Court below without undertaking any such exercise in this regard has erroneously awarded a sum of Rs. 8,000/- only in favour of revisionist towards payment of monthly maintenance. He, therefore, contends that the amount of monthly maintenance awarded by Court below being irrational, inadequate and insufficient is liable to be enhanced, by this Court.
Mr. C.P. Pandey, the learned counsel for revisionist- Nazim Khan contends that since no evidence was adduced by husband qua the income/status of husband i.e. opposite party-2, therefore, there was no material before Court below to arrive at a conclusive conclusion regarding the income of husband. As such, the amount of maintenance awarded by Court below is based upon no evidence, therefore, same is liable to be scaled down.
Having heard the learned counsel for revisionist, the learned A.G.A. for State and Mr. C.P. Pandey, the learned counsel representing opposite party-2 and upon perusal of material on record this Court finds that following three issues arise for determination in these criminal revision. (i) whether in view of law laid down by Apex Court in the case of Rajnesh (Supra), the Court below was right in directing the payment of monthly maintenance in favour of wife from the date of filing of written statement/objection i.e. 23.11.2021. (ii) whether in the absence of any evidence adduced by wife before Court below regarding the income of the husband, and also the fact that no evidence was adduced by the husband either regarding his income nor any affidavit was filed regarding his status and income, the Court below was required to draw an adverse inference against the husband regarding his income and therefore, quantify the amount of maintainance payable by the husband in consequence with the status of the husband (iii) whether in the facts and circumstances of the case, the amount of monthly maintenance awarded by court below is required to be scaled down.
Sofar as issue no-1 is concerned there is no dispute that Apex Court in the case of Rajnesh (Supra), has held that monthly maintenance shall be payable from the date of application and not from the date of order, therefore, the view taken by Court below that monthly maintenance is forged and illegal. Accordingly, direction so issued by Court below in the order impugned is liable to be set aside by this court.
Second issue that is required to be adjudicated by this Court is whether in the absence of evidence having been adduced regarding income of husband, by either of the parties, the Court below upon Holistic view of the matter and accordingly awarded monthly mainainence in favour of wife at the rate of Rs. 7000/- has rightly drawn a adverse inference against the husband regarding his status/income and salary. It is an undisputed fact that no evidence was adduced either by the husband regarding his income. No affidavit was filed by revisionist regarding his status/income in the light of law laid down by Apex Court in the case of Rajnesh (Supra). As such, husband who was in possession of best evidence for reasons best known to him choose not to disclose best evidence regarding his income and status. Therefore he cannot seek the benefit of his own wrong. The Apex Court in the case of Kiran Tomar and Others Vs. State of U.P., (2022) SCC Online SC 1539 held that income tax returns are not conclusive proof of evidence to determine the real income of the parties in case the parties are engaged in matrimonial dispute. Court held that what is required is that Court upon evaluation of material on record took a holistic view and thereafter draw inference. When the aforesaid test is applied to the facts and circumstances of the case, thei Court finds that it is an undisputed fact that husband is working in an international hotel. However, he pleaded before Court below that his income is Rs. 8,000/-. However, Court below did not draw any adverse inference on account of aforesaid and nor returned an adverse derivative finding and int income of revisionist. As such, Court below has failed to exercise its jurisdiction deligiently.
With regard to issue no.2 Court finds that parties are at issue as to whether the amount of monthly maintenance awarded by Court below commensurate with the status of the parties. Admittedly, the husband is working in an international hotel. No attempt was made by the husband to disclose his status and salary/income. Therefore, in view of above the Court was required to draw an adverse inference against revisionist regarding his income, which admittedly the Court has not done. In the light of above and the admitted the fact that husband is working in an International Hotel, therefore, the amount of maintenance awarded by Court not commensurate with the status of the parties.
It is well settled that maintenance awarded under section 12 of Protection of Women from Domestic Violence Act or under section 125 Cr.P.C. is not an ex-gratia payment but a legal recognition of moral obligation on the part of husband to maintain his wife. It is in view of above that courts have repeatedly held that maintenance awarded under section 125 Cr.P.C. must commensurate with the status of the parties. This is on this ground that claimant also has a right to live and not a right to exist. Only when maintenance awarded by Court commensurates with the status of the parties. Then claimant can also enjoy the same social and economic status as enjoyed by the person against whom an order of maintenance has been passed. When the order impugned is examined in the light of above, it cannot be said that the amount of maintenance awarded by Court below is either rational just and legal. In view of above, criminal revision filed by wife i.e. Smt. Bushara Khan succeeds and is liable to be allowed.
Accordingly, criminal revision filed by Smt. Bushara Khan is allowed. The amount of monthly maintenance is enhanced to Rs. 12,000/- per month.
Since no good ground is made out to interfere at the behest of the husband, the revision filed by husband Nazim Khan fails and is liable to be dismissed.
Accordingly Revision filed by Nazim Khan is dismissed.
Order Date :- 15.4.2024 Arshad