Allahabad High Court
Vikas vs State Of U.P. And Another on 14 August, 2013
Author: Bharat Bhushan
Bench: Bharat Bhushan
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved. In Chamber Case :- CRIMINAL REVISION No. - 3128 of 2011 Revisionist :- Vikas Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- V.P. Shukla,Amit Daga,Shailendra Garg,Vinod Tripathi Counsel for Opposite Party :- Govt. Advocate,Sunil Vashitha Hon'ble Bharat Bhushan,J.
1. Heard Mr Amit Daga, learned counsel for the revisionist, learned AGA for the State and Mr. Sunil Vashishtha, learned counsel appearing for the opposite party no. 2.
2. This revision is directed against the order dated 20.7.2011 passed by the Principal Judge, Family Court, Meerut in Case No. 508 of 2001, under Section 125 Cr.P.C. (Smt Upasana Vs Vikas) whereby the revisionist was directed to pay Rs 5000/- per month as maintenance to the opposite party no. 2 subject to the adjustment of maintenance awarded to her under the Protection of Women from Domestic Violence Act 2005.
3. The facts of the case are that the opposite party no. 2, revisionist-wife Upasana filed a petition for maintenance under Section 125 Cr.P.C. against her husband the revisionist on 16.9.2009 stating therein that her marriage was solemnised with the revisionist on 12.3.2008 in accordance with Hindu rites and rituals. Immediately after the marriage, her husband, in-laws and other family members started demanding a Car and on non fulfilment of the said demand she was subjected to cruelty by her in-laws and husband. On 23.8.2009 at about 7.30 a.m., her in-laws and husband assaulted her resulting into several injuries to her person. She lodged an FIR vide case crime No. 70 of 2009, under Sections 498-A,323,324,504,506 IPC against the revisionist and his family members on 1.9.2009.
4. It was also contended in the application that the father of the opposite party no. 2 had spent a considerable amount in her marriage and given enough money as dowry. It is further stated that her husband is getting salary of Rs. 65,000/- per month, earning of Rs. 30,000/- per month from agriculture and income of Rs. 20,000/- per month from the property. The opposite party no. 2 claimed maintenance stating that she has no income of her own. The court below awarded Rs. 5000/- per month as maintenance to the opposite party no. 2 (wife) from the date of application vide order dated 20.7.2011 subject to the adjustment of maintenance, awarded to her under the Protection of Women from Domestic Violence Act 2005. It is against this order the present criminal revision has been preferred by the revisionist-husband.
5. It is submitted by learned counsel for the revisionist that the impugned order is totally illegal, arbitrary and against the evidence on record. It is further submitted by learned counsel for the revisionist that the impugned order is contrary to the provisions of Section 125 Cr.P.C., which contemplates maintenance to wife only if deliberate desertion of wife by husband is established. He further submits that the law does not permit the wife to live separately without any valid reason and thereafter claim the maintenance from the husband.
6. Learned counsel for the revisionist has further submitted that another court has already passed an order dated 5.1.2011 directing the revisionist to pay maintenance to the opposite party no. 2 under the Domestic Violence Act and the court has again granted maintenance in favour of the wife vide order dated 20.7.2011 under Section 125 Cr.P.C. and thus the revisionist has been saddled with two maintenance orders simultaneously.
7. It is further submitted by learned counsel for the revisionist that the learned Principal Judge, Family Court, has committed manifest error apparent from the face of the record. The revisionist had not demanded any dowry nor assaulted his wife. Learned court below did not consider his allegations regarding the character of wife. The respondent-wife has left the house of the revisionist voluntarily. His entire story is false and baseless. The revisionist tried his best to bring the opposite party back to his house and ultimately the revisionist had to file a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act in the court of learned District Judge Gurgaon on 31st July, 2009. Learned court below has also not considered that the respondent-wife is highly qualified being M.A.,B.Ed and also earning sufficient money from tuition and coaching.
8. To the contrary, learned counsel for the opposite party no. 2 and learned AGA have defended the impugned order and submitted that the impugned order is just, proper and based on evidence on record.
9. I have perused the material on record.
10. In the opinion of this Court contentions of revisionist cannot be accepted on the ground that there is little scope under the revisional jurisdiction to upset the finding of the facts especially when there is no illegality, impropriety and perversity in the conclusions of the court below.
10. In exercise of the revisional jurisdiction, it will be beyond its power and jurisdiction to re-assess the evidence. Appraisal of the evidence is not permissible in revision. Hon'ble Supreme Court in "State of Kerala Vs. Putthumana Illath Jathavedan Namboodiri", AIR 1999 SC 981", has held that the High Court while hearing revisions does not work as a Appellate Court and will not re-appreciate the evidence, unless some glaring feature is pointed out which may show that injustice has been done.
11. Hon'ble Apex Court in Pyla Mutyalamma @ Satyavathi Vs Pyla Suri Demudu and another reported in 201(3) ACR 3538 (SC) has held as under:-
".......it is well-settled that the revisional court can interfere only if there is any illegality in the order or there is any material irregularity in the procedure or there is an error of jurisdiction. The High Court under its revisional jurisdiction is not required to enter into re- appreciation of evidence recorded in the order granting maintenance; at the most it could correct a patent error of jurisdiction. It has been laid down in a series of decisions including Suresh Mondal vs. State of Jharkhand AIR 2006 Jhar. R 153 that in a case where the learned Magistrate has granted maintenance holding that the wife had been neglected and the wife was entitled to maintenance, the scope of interference by the revisional court is very limited. The revisional court would not substitute its own finding and upset the maintenance order recorded by the Magistrate.
In revision against the maintenance order passed in proceedings under Section 125, Cr.P.C., the revisional court has no power to re-assess evidence and substitute its own findings. Under revisional jurisdiction, the questions whether the applicant is a married wife, the children are legitimate/illegitimate, being pre-eminently questions of fact, cannot be reopened and the revisional court cannot substitute its own views. The High Court, therefore, is not required in revision to interfere with the positive finding in favour of the marriage and patronage of a child. But where finding is a negative one, the High Court would entertain the revision, re-evaluate the evidence and come to a conclusion whether the findings or conclusions reached by the Magistrate are legally sustainable or not as negative finding has evil consequences on the life of both child and the woman. This was the view expressed by the Supreme Court in the matter of Santosh (Smt.) vs. Naresh Pal4 , as also in the case of Parvathy Rani Sahu vs. Bishnu Sahu5. Thus, the ratio decidendi which emerges out of a catena of authorities on the efficacy and value of the order passed by the Magistrate while determining maintenance under Section 125, Cr.P.C. is that it should not be disturbed while exercising revisional jurisdiction."
12. Coming back to the facts of the present case, it is not disputed that the parties solemnized their marriage on 12.3.2008 and they are now living separately. It also appears that the parties are litigating for dowry offences, domestic violence and under Section 9 of the Hindu Marriage Act. Learned Family Court has come to the conclusion that opposite party no. 2 is living separately since 23.8.2009 due to the physical and mental torture meeted to her by her in-laws and her husband. Trial Court concluded that the wife is unable to maintain herself. It is admitted by the husband that he is working as an engineer in a private company at a salary of Rs. 5500/- but the court below did not treat this income as genuine. The learned lower court has also concluded that the husband, has neglected to maintain his wife and thus has awarded a sum of Rs. 5000/- as maintenance from the date of application.
13. In the cases of maintenance, the court has to see that whether the wife has refused to live with her husband without any sufficient reason and it is also to be seen whether the husband has neglected to maintain his wife without any valid reasons. In the present case, admittedly, the parties are living separately since 23.8.2009. It is proved that both parties are living separately and the reason for living separately is physical and mental cruelty meeted out to the wife. It is also not denied that the husband has not paid any maintenance to his wife despite orders under the Domestic Violence Act and under Section 125 Cr.P.C.
14. As far as the question of passing of the order of maintenance under the Domestic Violence Act is concerned, the court below took notice of the fact that the maintenance has been also awarded to the wife under Protection of Women from Domestic Violence Act. The court below in its order has stated as under :-
"izkfFkZuh dk izLrqr izkFkZuk i= okLrs Hkj.k iks"k.k HkRrk foi{kh ds fo:) Lohdkj fd;k tkrk gS rFkk foi{kh dks funsZf'kr fd;k tkrk gS fd og izkFkZuh dks izkFkZuk i= dh fnuakd ls vadau 5000 :i;s Izkfrekg dk Hkj.k iks"k.k HkRrk vnk djsA ;g Hkh Li"V fd;k tkrk gS fd ?kjsyw fgalk vf/kfu;e vFkok vU; fdlh vkns'k ds rgr izkFkZuh ds }kjk izkIr fd;k x;k Hkj.k iks"k.k HkRrk bl fu.Zk; ds varxZr lek;ksftr fd;k tk;sxkA "
15. Thus the above quoted order clearly repudiate the argument raised by the counsel for the revisionist that he has been saddled with two maintenance orders at the same time. Family Court has ordered the adjustment of maintenance amount awarded in the Domestic Violence Act.
16. I have carefully examined the judgement of the court below. The impugned order does not suffer from any illegality, impropriety, perversity or jurisdictional error. It is well reasoned and based on appreciation of evidence and hence the same cannot be said to be perverse or perfunctory or illegal.
17. The criminal revision is devoid of merits and is hereby dismissed.
Office is directed to inform the court below about the order within a fortnight.
Dated: 14.8.2013 RavindraKSingh.