Allahabad High Court
Ahmad Husain Alias Munna vs State Of U.P. & 2 Others on 5 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2857
Author: Aniruddha Singh
Bench: Aniruddha Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 12 Case :- CRIMINAL REVISION DEFECTIVE No. - 1614 of 2019 Revisionist :- Ahmad Husain Alias Munna Opposite Party :- State Of U.P. & 2 Others Counsel for Revisionist :- Anshuman Singh,Alok Gupta,Pradeep Kumar Counsel for Opposite Party :- Govt. Advocate Hon'ble Aniruddha Singh,J.
1. Heard learned counsel for the revisionist and Sri Santosh Kumar Mishra, learned AGA for the State, and perused the record.
2. By the instant revision, revisionist questions the correctness of judgment dated 14.8.2019 passed by Additional Principal Judge/Fast Track Court (New), Sitapur in Criminal Case/Maintenance Petition No. 613 of 2014 (Smt. Shaheen Bano and another Vs. Ahmad Husaind) under Section 125 Cr.P.C., Police Station Kotwali, District Sitapur where by application under Section 125 Cr.P.C. filed by opposite party nos. 2 & 3 was allowed, directing the revisionist to pay maintenance @ Rs. 2000/- (two thousand) per month to opposite party no. 2 and Rs. 1000/- (one thousand) per month to her daughter (opposite party no. 3) from the date of judgment.
3. Learned counsel for the revisionist submitted that impugned order is illegal, against facts and law and without applying judicial mind. Revisionist is ready to live with the opposite party nos. 2 and 3 but opposite party no. 2 is not ready to live with the revisionist, even then the suit for restitution of conjugal rights was decreed in his favour. Opposite party no. 2 to went to her parent's house (mayaka) and did not return.
4. Learned AGA submitted that grounds raised in the revision are without substance. Court below has recorded specific finding that opposite party no.2 is living separately due to misbehavior of revisionist and revisionist is a healthy person who can earn Rs.7000-8000/- per month and marriage between both the parties is admitted.
5. Question is whether opposite party no. 2 has succeeded to prove her case. Prove is defined under Section 3 of Evidence Act which is quoted here as under:-
"Proved".-A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
6. Question is whether a prudent man can believe that facts shown in the application of opposite party no. 2 do exist.
7. Proceeding under Section 125 Cr.P.C. is summary proceeding. Order does not determine rights of parties as it was held by the Apex Court in Dwarika Prasad Satpathy vs. Bidyut Prava Dixit and Another, AIR 1999 SC 3348, wherein following has been observed:-
"It is to be remembered that the order passed in an application under Section 125 Cr.P.C. does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide summary remedy for providing maintenance to a wife, children and parents. For the purpose of getting his rights determined, the appellant has also filed a Civil Suit, which is pending before the trial court. In such a situation, this Court in S. Sethurathinam Pillai v. Barbara alias Dolly Sethurthinam, {1971 (3) SCC 923} observed that maintenance under Section 488 Cr.P.C., 1898 (Similar to Section 125 Cr.P.C.) cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached. It was held that order passed under Section 488 is a summary order which does not finally determine the rights and obligations of the parties; the decision of the criminal court that there was a valid marriage between the parties will not operate as decisive in any civil proceeding between the parties."
8. With reference to the ground that income of revisionist could not be proved, from perusal of impugned judgment it transpires that revisionist is a healthy person and is living separately. Opposite party no. 2 has stated that after marriage revisionist has demanded dowry, tortured her, threatened to solemnize second marriage. In these circumstances, in my opinion, maintenance awarded by the Court below is not arbitrary and not on higher side.
9. Under Section 125 Cr.P.C."a person having sufficient means" means a person who has capacity to earn. When actual income could not be proved by the wife, the average income of husband is to be assessed; and following this principle, Court below has rightly held that income of revisionist is Rs.7000-8000/- per month and awarded Rs.3000/- per month from the date of order.
10. In the case of Ramesh Chander Kaushal v. Mrs. Veena Kaushal and others, (AIR 1978 SC 1807) Krishna Iyer, J dealing with interpretation of Section 125 Cr.P.C. observed (at Para 9) thus:-
"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 advances the cause of the derelicts."
11. Section 125 Cr.P.C. is a measure of social justice on this point. It is also pertinent to mention here that intention of legislature also shows that this provision is measure of social justice because initially amount of maintenance was fixed to Rs.500/- per month. Subsequently, it was enhanced upto Rs.5000/- per month and later on these words have been deleted and present position is that there is no financial limit for maintenance under this section.
12. Main argument raised by learned counsel for the revisionist is that revisionist is ready to live with the opposite party nos. 2 and 3 but opposite party no. 2 is not ready to live with the revisionist.
13. In case of Devendra Prasad Vs. State of Behar, 2006 (37) AIC 925 (927) (Pat), it was held that if the wife for sufficient reason refuses to live with her husband, then even if she lived with him, the husband can be ordered to pay maintenance to her.
14. From the perusal of record, it transpires that for demand of colour T.V., motorcycle etc. by revisionist, which opposite party no. 2 refused to get from her parent's house, the revisionist tortured her for which compromise was made several times but it failed. Revisionist is a man of bad character and has illicit relationship with other women. He wants to marry second time for which F.I.R. under Section 498-A, 504 IPC and ¾ Dowry Prohibition Act is also registered, which is pending. Allegations of revisionist that opposite party no. 2 does not want to live with him is not believable and trustworthy. Above facts were proved by opposite party no. 2 itself and by P.W. 2 Bakridi. Marriage between the parties is admitted and a girl was born out of this wedlock. Presumption under Section 112 of Evidence Act will also lie against the revisionist. It will presume that the daughter born out is the daughter of revisionist.
15. In case of Narayan Sahu Vs. Sushama Sahu 1992 CrLJ2912 1992 (1) Crimes 66 (Ori), it was held that if the wife has a just ground for refusal to live with the husband by reasons of his marrying again or keeping a mistress, the husband must maintain his wife notwithstanding her refusal to live with him.
16. In the case of Saranan Banerjee vs. State of Jharkhand, 2007(2) AIR P 82(Jhar) Court has held that an order of maintenance would not be set aside merely on the ground that wife refused to live with the husband despite decree for conjugal rights where she alleges torture and ill-treatment. Paragraphs 11,12 and 13 are quoted below:-
"11. Finally it has been submitted that since the wife is not ready to live with her husband in spite of conciliation and efforts taken by this Court and also in view of the decree of restitution of conjugal rights as claimed by the husband, the wife Aparna Banerjee is not entitled to maintenance at all.
12. Having regard to the facts and circumstances of the case from the perusal of the order impugned passed by the Principal Judge, Family Court, Jamshedpur though I find that the pleading of the wife Aparna Banerjee that her husband had been earning Rs. 30,000 could not be established, it was gathered that the husband had been earning Rs. 3,000 to 3,500 per month in course of his temporary employment in Telco. It is also established that the husband has tea-stall of his own and that he purchased a flat. On the basis of such assessment and finding the amount of maintenance awarded to the tune of Rs. 1,000 to the wife Aparna Banerjee and Rs. 500 to their daughter per month does not call for interference in revision. But now the fact remains that the husband Saranan Banerjee had obtained a decree under Section 9 of the Hindu Marriage Act for restitution of conjugal rights as against Aparna Banerjee and in spite of conciliation and efforts she is not inclined to live with her husband on the plea that a case for the offence under Section 498A, IPC was pending against the husband on the allegation of torture, misbehaviour, demand of dowry and many other allegations and for such reason she is apprehensive at the hands of her husband Saranan Banerjee. The judgment passed and decree prepared under Section 9 of the Hindu Marriage Act for restitution of conjugal rights is decree, which cannot be executed by force. I am, therefore, of the opinion that the maintenance amount awarded to the wife Aparna Banerjee and her daughter cannot be sweeped and set aside only on the ground that she was not inclined to abide by the decree of the restitution of conjugal rights prepared against her. The order passed by the Principal Judge, Family Court, Jamshedpur in Misc. Case No. 99 of 1998/70 of 2001 on 28th June, 2002 does not call for interference and it is upheld and maintained.
13. Accordingly, both the Cr. Revisions are disposed of."
17. On this point law is very settled, if there is sufficient ground for wife to live separately, they are entitled for maintenance.
18. In the case of Nathu Ram Vs. Atar Kumr, AIR, 1969 All 191 1969 CRLJ 517, it was held that where the Civil Court granted decree of jidicial separation on account of ill-treatment of husband, the wife is entitled to claim maintenance while living separately.
19. It is also pertinent to mention here that according to facts of opposite party no. 2, revisionist is doing business and earned Rs. 15000/- (fifteen thousand), hence amount awarded by trial court is not excessive.
20. Moreover, in the case of Munna Devi vs. State of Rajasthan & another Appeal(Crl.) No. 1138 of 2001 decided on 6.11.2001, Hon'ble Supreme Court has held that the revisional power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner.
21. Therefore, all grounds are without substance. No other ground has been pressed before this Court. The Court below has carefully noticed all facts and has rightly decided the case in favour of opposite party nos.2 & 3. This Court finds no illegality, impropriety, material irregularity or jurisdictional error in the impugned order. No interference is called for. The present revision is bereft of merit and is hereby dismissed at admission stage.
22. Certify this judgment to the lower Court immediately.
Order Date :- 5.12.2019 A. Singh