Allahabad High Court
Naveen Agrawal vs State Of U.P. And 2 Others on 25 November, 2021
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 89 Case :- CRIMINAL REVISION No. - 3036 of 2021 Revisionist :- Naveen Agrawal Opposite Party :- State Of U.P. And 2 Others Counsel for Revisionist :- Gyan Prakash Shrivastava,Shrinath Dwivedi Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.
1. Heard Srinath Dwivedi, learned counsel for the revisionist as well as learned AGA, who appears for the opposite party no.1 (State of U.P.). In view of the order proposed to be passed, there is no necessity to issue notices to opposite parties no. 2 and 3.
2. Challenge in the present revision purported to be under Section 397 read with Section 401 Cr.P.C., 1973 is to the order dated 12.8.2021 passed by the court of learned Additional Family Judge/Family Court, Court No.1, Kanpur Nagar in the proceedings under Section 125 Cr.P.C. having Case No.460/2019, (CNRI-UPKN0200164/2019, Smt. Shalini and others Vs. Navin Agarwal whereby maintenance awarded to the opposite party nos.2 and 3.
3. Brief facts of the case shorn off unnecessary details as pleaded and set forth before the court below as well as before this Court in the present revision are that the opposite party no.2 solemnized marriage with the revisionist herein on 10.5.2003 as per Hindu ritual and rites at Status Club Cantt., Kanpur city.
4. According to the allegations as set forth in the application under Section 125 of the Cr.P.C. so preferred by the opposite party nos. 2 and 3, it was alleged that consequent to the marriage which was solemnized on 10.5.2003, the opposite party no.2 brought various gifts in the honour of the revisionist and his family but neither the revisionist nor his parents were happy with the gifts so offered by the family of the opposite party no. 2 and they asked for dowry of 4 lakhs. On 28.10.2004 with the wedlock of the opposite party no.2 and the revisionist, the opposite party no.3 was born. Even after the birth of the opposite party no.3, there was no change in the attitude of either the revisionist or his parents.
5. On 25.10.2007, the revisionist and his parents had thrown away the opposite party nos. 2 and 3 from their house only with the clothes which they were wearing from that point of time whey the were residing with their parents (Matrimonial house). It is further alleged that the opposite party no.2 is/was mentally broken on account whereof she is not able to earn anything and she is completely dependent upon her parents.
6. Further it has been pleaded that the opposite party no.2 has no source of income and it has become virtually impossible for her to sustain herself & minor daughter as according to the opposite party no.2, the revisionist has his own accommodation and he is/was working in Chandra Agency and he is getting huge salary in this regard.
7. On being noticed the revisionist herein filed its objections.
8. Thereafter now an order has been passed by the court of Additional Family Judge, Family Court No.2, Kanpur Nagar on 12.8.2021 whereby the applications so preferred under Section 125 Cr.P.C. for maintenance has been allowed in part and the opposite party no.2 has been awarded maintenance of Rs.4000/- per month as well as the opposite party no.3 being a minor has been awarded maintenance of Rs.3000/- per month totaling to Rs.7000/- per month.
9. Assailing the order dated 12.8.2021 passed in the proceedings under Section 125 Cr.P.C. in the Case No. 460 of 2019, the revisionist is before this Court.
10. Before proceeding to decide the present case, it has to be kept in mind that the present proceedings which have been initiated before this Court is under the provisions contained under Section 397/401 Cr.P.C. being revisional jurisdiction.
11. The scope and the extent of exercise of revisional jurisdiction under Section 397 and 401 Cr.P.C. is no more res integra as this Court can only interfere in the order under challenge when the same is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records as the revisional court is not justified in setting aside the order mainly because another view is possible.
12. In the light of the well settled principle of law as culled out by the Hon'ble Apex Court, the present case is to be decided.
13. Brief background of the statutory enactments so made from time to time are germane for adjudication of the controversy in question and hence the same are reproduced hereinbelow:-
Section 488 of the Cr.P.C. 1898:-
Section 488-Order of maintenance of wife & children "(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub divisional Magistrate or 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, at such monthly rate, not exceeding fifty rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.
(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 wilfully neglects to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance 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, 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 mate an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
(4) No wife shall he 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.
(6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons-cases:
Provided that if the Magistrate is satisfied that he is wilfully avoiding service, or wilfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. Any order so made may be set aside for good cause shown, on application made within three months from the date thereof.
(7) The accused may tender himself as a witness, and in such case shall be examined as such.
(8) The Court in dealing with applications under this section shall have power to make such order as to costs as may be just.
(9) The accused may be proceeded against in any district where he resides or is, or where he last resided with his wife, or, as the case may be, the mother of the illegitimate child."
Section 125(1) of the Cr.P.C. 1973 (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 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:
Section 125 Cr.P.C. 1973 as amended w.e.f. 24.9.2001 -
Section 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 1[***] 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 for the maintenance or interim maintenance and expenses of proceeding 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 proceeding, 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 port of each month's 4[allowance for the maintenance or the interim maintenance and expenses of proceeding , as the case may be] 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 4[allowance for the maintenance or the 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.
(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.
STATE AMENDMENTS Uttar Pradesh:
"(6) where in a proceeding under this section it appears to the Magistrate that the person claiming maintenance is in need to immediate relief for his support and the necessary expenses of the proceeding, the Magistrate may, on his application, order the person against whom the maintenance is claimed, to pay to the person claiming the maintenance, during the pendency of the proceeding such monthly allowance not exceeding five thousand rupees and such expenses of the proceeding as the Magistrate consider reasonable and such order shall be enforceable as an order of maintenance."
14. The incorporation of the provisions pertaining to maintenance has been well recognized and the provisions so contained under Section 488 of the Cr.P.C. 1898 which is a pre-constitution enactment has been given recognition and endorsed while giving it up proper place and status in Section 125 of the Cr.P.C., 1973.
15. The laws relating to maintenance have been enacted as a measure for social justice to provide immediate relief to dependent being wives and children for their family support so as to prevent them from falling into destitution and vagrancy.
Article 15(3) of the Constitution of India provides that:
"Nothing in this article shall prevent the State from making any special provision for women and children."
16. Thus it can be safely said that the Constitution of India, 1950 has envisaged a devise setting up a positive role for the State in fostering change towards the empowerment of women leading to amendment in various legislation and introduction of new legislation.
17. As noticed earlier the pre-constitutional law being the Code of Criminal Procedure, 1898 relating to Section 488 has been followed in Section 125 Cr.P.C. before its amendment in the year 2001 as in other words it can be said that Section 125 Cr.P.C. is an incarnation of Section 488 of the old Act except the fact that now parents also are brought into category of persons eligible for maintenance and further legislative cognizance has also been taken of the devaluation of the rupees and escalation of living cost by raising maximum allowance from 100 to 500. However, now after amendments made in the year 2001 the ceiling limit for maintenance has been done away.
18. The Hon'ble Supreme Court in the case of Captain Ramesh Chander Kaushal Vs. Mrs. Veena Kaushal and others reported in (1978) 4 SCC 70 in para 9 has observed as under:-
"9. This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by Courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advance the cause--the cause of the derelicts."
19. The basic idea behind insertion of the provisions relating to grant of maintenance is to prevent vagrancy and destitution of the dependents so as to create an atmosphere whereby a dependent is not allowed to starve or lead a life which cannot be termed to be a respectable living.
20. Section 125 of the Cr.P.C. is a self-contained code which finds presence under Chapter IX of 1973 Code for the aid of wife, children and parents in the matter of maintenance that to in summary proceedings. Maintenance under Section 125 of the Cr.P.C. can be claimed by a person irrespective of belonging to any religious community and the object of the said Section is to provide immediate relief to an applicant meaning thereby that it is a beneficial legislation in favour of the dependents.
21. It is not a matter of right that a dependent can claim maintenance under Section 125 Cr.P.C. as there are certain conditions. It is further not matter of mere asking that the maintenance can be claimed by a dependent as for the said purpose, there are certain pre-requisite conditions which have to be satisfied namely;
(i) the husband must have sufficient means;
(ii) the husband neglects to maintain his wife, who is unable to maintain herself
22. Yet the Hon'ble Supreme Court in the case of Shri Bhagwan Dutt Vs. Smt. Kamla Devi and another reported in (1975) 2 SCC 386 while dealing with the provisions contained under Section 488 of the old Act held as under:-
"19. The object of these provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband and his commitments."
23. The Hon'ble Apex Court had even put a caveat and has cautioned that the proceeding under Section 125 of the Cr.P.C., 1973 is not with an object to punish a person but prevent vagrancy by compelling who can provide support to those who are unable to support themselves.
24. Hon'ble Supreme Court in the case of Chaturbhuj Vs. Sita Bai (2008) 2 SCC 316 in para 6 has observed as under:-
"6. The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. The phrase "unable to maintain herself" in the instant case would mean that means available to the deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow.
Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Captain Ramesh Chander Kaushal v. Mrs. Veena Kaushal and Ors (1978) 4 SCC 70) falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India, 1950. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat and Ors. (2005) 3 SCC 636."
25. Reiterating the principles of law as laid down in the aforesaid decisions the Hon'ble Apex Court in the case of Chanmuniya Vs. Virendra Kumar Singh Kushwaha and another (2011) 1 SCC 141 has even gone into the marital status with regard to long cohabitation and in para 42 observed as under :-
"42. We are of the opinion that a broad and expansive interpretation should be given to the term 'wife' to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a pre-condition for maintenance under Section 125 of the Cr.P.C., so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125.We also believe that such an interpretation would be a just application of the principles enshrined in the preamble to our Constitution, namely, social justice and upholding the dignity of the individual."
26. In the case of Kamla and others Vs. M.R. Mohan Kumar reported in (2019) 11 SCC 491 the Hon'ble Apex Court has gone to the extent that long cohabitation between woman and man leads to presumption of marriage entitling maintenance for woman and children born to them.
27. In the touch stone of the principles of law propounded by the Hon'ble Apex Court the present controversy is to be addressed.
28. Learned counsel for the revisionist had manifold submissions:-
(a) The revisionist being the husband of the opposite party no.2 and the father of the opposite party no.3 is not financially sound and rather not in a position to pay maintenance to the dependents.
(b) The opposite party no.2 being the wife of the revisionist is financially sound, she is not entitle to any maintenance from the revisionist.
(c) The proceedings under Section 125 of the Cr.P.C. are not maintainable at the behest of the opposite party nos. 2 and 3 as they have themselves left the home of the revisionist.
(d) Order passed by the court below directing for grant of maintenance from the date of the application is illegal.
29. On the other hand, learned AGA, who appears for the opposite party no.1 has argued that the revisionist was employed as Third Engineer in the Merchant Navy and he voluntarily left the same in order to avoid payment of maintenance and the fact that he also resigned from a private employment in Kanpur shows that he is financially sound.
30. Having gone through the order under challenge, I find that the revisionist was a Third Engineer in Merchant Navy. However, he resigned when the proceedings under Section 125 Cr.P.C. was initiated by the opposite party nos. 2 and 3 thereafter as per the own showing of the revisionist, the revisionist got employment in M/s Chandra Associates, where from he also resigned. The said fact itself shows that the revisionist has adequate financial backing.
31. Further It is also come on record that the revisionist's father was employed with the government and thereafter consequent to his retirement, he was getting pension and after his death, mother of the revisionist getting family pension. Further it is also come on record that the revisionist has his own house and he is the only son living with his mother.
32. The aforesaid facts have not been disputed by the revisionist but only this much has been argued that he is not in a position to maintain his wife and his minor child
33. In absence of any evidence available on record either adduced or pleaded inescapable conclusion follows that the findings recorded by the court below cannot be said to be perverse, as onus to prove that the findings are perverse is upon the revisionist and once the revisionist has not assailed the said findings seriously the order cannot be said to be suffering from manifest illegality.
34. So far as the argument so raised by the revisionist with regard to the fact that the opposite party no.2 is financially sound and she does not need any maintenance is concerned, the revisionist has pleaded and argued this much that the opposite party no.2 has done M.A. B.Ed. and she is earning Rs.20,000/- from R.K. Education Institute and getting income of Rs.10,000/- from tuition. The said fact has been disputed by the opposite party no.2. However, counsel for the revisionist husband has completely failed to show any document to fortify the claim set up by him. The court below has recorded a finding of fact which the revisionist could not prove otherwise. Hence the argument so sought to be raised on the said factual issue deserves to be rejected.
35. The third submission of learned counsel for the revisionist is with regard to the fact that the opposite party no.2 being the wife had left the house voluntarily and on being called repeatedly she did not come to live with her husband. The court below has also analysied said issue and has recorded a finding of fact that the proceedings under Section 13 of the Hindu Marriage Act had been instituted by the revisionist against the opposite party no.2 being bearing No.1372/12, Navin Agarwal Vs. Smt. Shanti. The said institution of the proceedings under Section 13 of the Hindu Marriage itself shows that it is the revisionist who wanted the marriage to be dissolved and thus in the said factual background, it has been rightly held by the court below that the revisionist never wanted to live with his wife.
36. Learned counsel for the revisionist has lastly argued that the maintenance so awarded by the court below is highly excessive and further if assuming without admitting the revisionist is liable to pay maintenance then that should be from the date of order and not from the date of the application. The said argument so sought to be raised by the learned counsel for the revisionist has no basis as recently the Hon'ble Apex Court in Criminal Appeal No.730 of 2020, Rajneesh Vs. Neha decided on 4.11.2020 has observed as under :-
Discussion and Directions The judgments hereinabove reveal the divergent views of different High Courts on the date from which maintenance must be awarded.
Even though a judicial discretion is conferred upon the Court to grant maintenance either from the date of application or from the date of the order in S. 125(2) Cr.P.C., it would be appropriate to grant maintenance from the date of application in all cases, including Section 125 Cr.P.C. In the practical working of the provisions relating to maintenance, we find that there is significant delay in disposal of the applications for interim maintenance for years on end. It would therefore be in the interests of justice and fair play that maintenance is awarded from the date of the application.
In Shail Kumari Devi and Ors. v Krishnan Bhagwan Pathak 2008 9 SCC 632, this Court held that the entitlement of maintenance should not be left to the uncertain date of disposal of the case. The enormous delay in disposal of proceedings justifies the award of maintenance from the date of application. In Bhuwan Mohan Singh v Meena61, this Court held that repetitive adjournments sought by the husband in that case resulted in delay of 9 years in the adjudication of the case. The delay in adjudication was not only against human rights, but also against the basic embodiment of dignity of an individual. The delay in the conduct of the proceedings would require grant of maintenance to date back to the date of application.
The rationale of granting maintenance from the date of application finds its roots in the object of enacting maintenance legislations, so as to enable the wife to overcome the financial crunch which occurs on separation from the husband. Financial constraints of a dependant spouse hampers their capacity to be effectively represented before the Court. In order to prevent a dependant from being reduced to destitution, it is necessary that maintenance is awarded from the date on which the application for maintenance is filed before the concerned Court.
In Badshah v Urmila Badshah Godse (2014) 1 SCC 188 , the Supreme Court was considering the interpretation of Section 125 Cr.P.C. The Court held :
"13.3. ...purposive interpretation needs to be given to the provisions of Section 125 CrPC. While dealing with the application of a destitute wife or hapless children or parents under this provision, the Court is dealing with the marginalised sections of the society. The purpose is to achieve "social justice" which is the constitutional vision, enshrined in the Preamble of the Constitution of India. The Preamble to the Constitution of India clearly signals that we have chosen the democratic path under the rule of law to achieve the goal of securing for all its citizens, justice, liberty, equality and fraternity. It specifically highlights achieving their social justice. Therefore, it becomes the bounden duty of the courts to advance the cause of the social justice. While giving interpretation to a particular provision, the court is supposed to bridge the gap between the law and society." (emphasis supplied) It has therefore become necessary to issue directions to bring about uniformity and consistency in the Orders passed by all Courts, by directing that maintenance be awarded from the date on which the application was made before the concerned Court. The right to claim maintenance must date back to the date of filing the application, since the period during which the maintenance proceedings remained pending is not within the control of the applicant."
Final Directions In view of the foregoing discussion as contained of this judgment, I deem it appropriate to pass the following directions in exercise of our powers under Article 142 of the Constitution of India:-
(a)......................
(b).......................
(c)...........................
(d) Date from which maintenance is to be awarded We make it clear that maintenance in all cases will be awarded from the date of filing the application for maintenance."
37. The Hon'ble Apex Court has clearly mandated that maintenance in all cases will be awarded from the date of the filing of the application for maintenance.
38. Perusal of the application under Section 125 of the Cr.P.C. shows that opposite party nos. 2 and 3 had claimed maintenance of Rs.30,000/- from the revisionist. However, the court below in the order under challenge has awarded maintenance to the opposite party no.2 to the tune of Rs.4000/- and Rs.3000/- to the minor son of the revisionist. This Court finds that there are sufficient material on record to show that the determination so done by the court below while awarding Rs.4000/-per month as maintenance to the wife and Rs.3000/- towards maintenance of the minor son per month is not excessive. The court below has taken note of the income of the revisionist as well as the financial condition of the opposite party no.2 as well as the prevailing circumstances including the inflation. Hence the arguments so raised by the learned counsel on that count deserves to be rejected.
39. No other point has been raised by learned counsel for the revisionist.
40. Resultantly, this Court does not find any manifest illegality by the court below in the order dated 12.8.2021 passed by the court of learned Additional Family Judge/Family Court, Court No.1, Kanpur Nagar in the proceedings under Section 125 Cr.P.C. having Case No.460/2019, (CNRI-UPKN) 0200164/2019, Smt. Shalini and others Vs. Navin Agarwal.
41. Accordingly, the criminal revision is dismissed.
Order Date :- 25.11.2021 piyush