Allahabad High Court
Aslam Abbasi vs State Of U.P. And 2 Others on 16 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 2821
Author: Narendra Kumar Johari
Bench: Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD
(Reserved On: 16.10.2019)
(Delivered On: 16.11.2019)
Court No. - 82
Case :- CRIMINAL REVISION No. - 3420 of 2017
Revisionist :- Aslam Abbasi
Opposite Party :- State Of U.P. And 2 Others
Counsel for Revisionist :- Ali Hasan,Istiyaq Ali
Counsel for Opposite Party :- G.A.,Ankur Goyal
Hon'ble Narendra Kumar Johari,J.
1. The present revision has been filed by revisionist/husband against order dated 10.08.2017 passed by learned Judge, Family Court, Fast Track Court No.1, Agra in Case No.338 of 2014 (Smt. Shahnaz Abbasi and others Vs. Aslam Abbasi) under Section 125 Cr.P.C., Police Station- Lohamandi, District- Agra.
2. Learned Judge, Family Court, Agra passed the order to pay Rs.10,000/- (Rs.5,000/- for applicant- Smt. Shahnaz Abbasi and Rs.5,000/- for their minor son Mohd Raza) total 10,000/- per month as interim maintenance.
3. In the memo of revision the revisionist has stated that he was married with respondent no.2 on 21.02.2011 and respondent no.3 is his son born out of wedlock of respondent no.2 and revisionist. Revisionist has further stated that he was paying proper care and respect to respondent nos. 2 and 3, but respondent no.2 was reluctant with respect and supervision of old parent of revisionist. She has left her matrimonial home without any sufficient reason. Therefore, she is not entitled for any maintenance. Revisionist has got allotment of one house under Avas Vikas Yojan Sikandra, Agra after taking the loan Rs.17,50,000/- as repayment on monthly installments. Respondent is working as Seechpal in Irrigation Department and getting Rs.23,134/- per month as a salary. Revisionist is also taking care of his old parents. Father of revisionist is suffering from malignancy and is under treatment. Respondent no.2 is a graduate educated lady. She is expert in work of sewing and weaving and also doing the job of tuition. She is well capable to earn and maintain herself and her son. During the proceeding of mediation, respondent no.2 has refused to reside with revisionist. Respondent no.2 has filed an another case under Domestic Violence Act as Case No.653 of 2014 (Smt. Shahnaz Abbasi Vs. Aslam Abbasi) under Section 12 of Domestic Violence Act, P.S.- Shahganj, District- Agra, wherein revisionist is paying Rs.2,000/- per month as interim relief. Respondent no.2 has also lodged a F.I.R. against the revisionist and his relatives as Crime No.144 of 2016, under Sections 498-A, 323, 504, 506, 376/511 I.P.C. and ¾ Dowry Prohibition Act, P.S.- Mahila Thana, District- Agra in which police has submitted final report which has been accepted by learned Magistrate. Against the acceptance of final report, respondent no.2 had filed Criminal Revision No.389 of 2014 which too was dismissed by the court on 30.09.2015. Revisionist is ready to keep his wife and son with him but respondent no.2 is not ready. Rs.10,000/- as interim maintenance is too excessive and exorbitant for revisionist. Hence impugned order dated 10.08.2017 be set aside and revision is liable to be allowed.
4. Heard learned counsel for the revisionist, learned counsel for opposite party no.2 and 3 and learned A.G.A. for State and perused the record.
5. The brief fact of the case is that opposite party no.2 and 3 filed a case bearing no.338 of 2014 under Section 125 Cr.P.C. against revisionist for granting maintenance. During the pendency of the case, applicant moved an application dated 26.10.2016 for grating interim maintenance, wherein respondent no.2/applicant averred that she was married with opposite party/revisionist on 21.02.2011. In marriage, her parent has given sufficient dowry but her in-laws (father-in-law, mother-in-law, and brother-in-law) and her husband were not happy with the given dowry and were demanding car as additional dowry. They started torture to applicant for fulfillment of demand of additional dowry. Her parents purchased a house in Bodla, Agra. Her brother-in-law (Devar) Akaram Abbasi was intending to outrage her modesty also but her husband is not taking any care. On 01.05.2013 she was beaten and was expelled from her matrimonial home. Subsequently in Mediation Centre her in-laws assured that they will neither torture the applicant nor will raise any demand of dowry. Therefore, she returned at her matrimonial home. Due to the reason the parties have compromised in Mediation Centre therefore, in the case which was filed by revisionist against the cruelty on in-laws, police had submitted final report on the basis of said compromise.
6. It has further been mentioned in application that after above compromise again on 09.04.2014 her in-laws beaten her and expelled her from their house in pregnant condition. They also threatened for fulfillment of demand of dowry. After that she gave birth of a son Hasan in Ashirwad Nursing Home. There are two holes in heart of her son for which he is on continuance treatment and medicine and every second month he is under going echocardiography. The expenditure of investigation and medicine comes Rs.5,000/- per month. His elder son Mohd. Raza aged about 5 years is also suffering from tuberculosis for which he is taking medicine of Rs.1,500/- per month.
7. It has also been mentioned that there is no source of income of applicant, on the other hand, opposite party/revisionist is working as Seechpal in Irrigation Department. He is drawing salary about Rs.25,000/- per month. Apart from that opposite party/ revisionist is possessing a factory of Kabad from which he earns Rs.25,000/- per month. Opposite party/ revisionist also possess a plot situated in village Ladamada and a house in Mohalla Veerbahadur Naubasta Lohamandi, Agra. He earns Rs.45,000/- per month from all the sources. She requires atleast Rs.25,000/- per month for maintenance. Apart from that she also requires Rs.30,000/- as expenses of Ashirwad Nursing Home.
8. In lower Court, opposite party/respondent has submitted his reply on 02.06.2017 against the applicant for interim maintenance. He has submitted that there is discrepancy in the date of birth of Hasan as applicant is residing separately from 2014. Applicant is not entitled to get any amount of maintenance for his son Hasan. As on the date of institution of application under Section 125 Cr.P.C. applicant was having only one son Mohd. Raza. Applicant is getting Rs.2,000/- per month as interim maintenance vide order passed in the case of Domestic Violence Act. Opposite party has taken a house in Sikandra under Avas Vikas Yojan, for which he has taken loan of Rs.17,50,000/- from State Bank of India. The repayment of installment is Rs.15,500/- per month is being deducted from his salary. Apart from that he expenses Rs.3,000/- per month as expenditure of litigation. He expenses Rs.2,000/- per month on transportation also.
9. He has further stated that applicant is educated and graduate lady she runs a coaching at her residence. She earns Rs.20,000/- per month from her coaching. She don't want to reside with opposite party willfully. Opposite party wants to keep her wife and children with him and wants to provide medical facilities which is permissible to Government employee. At present, applicant is residing with her parents. He has further mentioned that the treatment of heart of children is available at Satya Sai Heart Centere, New Raipur, Chhattisgarh which is free of cost. Applicant wants to provide the medical aid to his ill children as per his convenience. Therefore, the application for maintenance is liable to be dismissed. The objection is supported with affidavit.
10. Learned Judge, Family Court has considered the contention of both the sides and passed the order dated 10.08.2017 to provide interim maintenance of Rs.10,000/- per month for opposite party nos. 2 and 3.
11. The factum of marriage has not been denied by the revisionist. The revisionist also admits that Mohd. Raza is his son who is a minor boy. Revisionist has also not denied that Hasan is not his son. In his written objection he has only indicated the discrepancy as mentioned in application for interim maintenance regarding the birth of Hasan. Although, he has admitted in para 7 of his affidavit dated 02.06.2017 that he is ready to provide medical treatment to his children. Therefor, it is clear that revisionist admits that he is father of two sons who are in ill conditions.
12. Respondent no.2 has specifically mentioned that when she was expelled from her matrimonial home she was in pregnant condition. No lady in her pregnant condition would like to leave her matrimonial home without any sufficient reason, particularly, when she is a mother of little child. The ground taken by revisionist regarding willfully, and without any reason separate residing of applicant is a question of merit which shall be determined at the time of judgment in the case.
13. it has not been denied by revisionist, as it has been mentioned in para 2 of his objection dated 02.06.2017 that applicant is residing with her parent from the year 2014.
14. There is no documentary evidence available on record which could proof that applicant/ respondent no.2 has any earnings.
15. If a husband having sufficient means, neglects or refuses to his wife and children who are unable to maintain themselves, the family court having jurisdiction may pass an order under Section 125 Cr.P.C. against husband to make a monthly allowance for the maintenance on his wife and children.
16. Proviso second of Section 125 (1) Cr.P.C. which reads as under:-
"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."
17. Revisionist has taken the ground that he has purchased a house from Avas Vikash Parishad for which he has taken loan of Rs.17,50,000/- from State Bank of India, Agra. The loan is being repaid by way of installments and Rs.15,500/- per month is being deducted from his salary as repayment of installments. In support, he has submitted the statements of account which is annexed as paper no.67 to 69 with revision. The entries indicate that the loan of Rs.17,50,000/- was sanctioned and debited in account via transfer on 29.07.2015. Admittedly, applicant left her matrimonial home in the year 2014. It has also been admitted by revisionist that at that time he was father of a son, it can be presumed that on 06.04.2014 when she left her matrimonial home in her pregnant condition, she would have given birth of a child within maximum nine months. Accordingly, the date of birth of second child of revisionist and opposite party no.2 comes before the date of sanction of aforesaid loan amount. Revisionist was fully aware that after deduction of loan, repayment installment of Rs.15,500/- per month from his salary, he will receive lesser amount. It was also well in his knowledge that he has responsibility to maintain his wife and children. Therefore, just to avoid maintenance of respondent no.2 and 3, if he has taken a loan with heavy repayment installments (as compare to his salary), then in that case it can be said that it was a per-planned activity of revisionist. It has not been denied by the revisionist that he has a parental home in Lohamandi, Agra. Revisionist has not shown any cogent reason to purchase another house for his separate living, particularly when he was residing alone. In above circumstances, it can be treated as a luxurious life style of revisionist. He can not live his life with luxury on the cost of maintenance and treatment of his wife and children. Contention of para 2 of objection of revisionist/ opposite party indicates that the proceeding of case under Section 125 Cr.P.C. was pending against him at the time of taking loan from Bank. He was under obligation to pay maintenance allowance to opposite parties. Therefore, taking loan from Bank was a willful conduct of revisionist just to avoid payment of maintenance. In such a situation, he can't take plea that he has not sufficient means to provide maintenance to his wife and children.
18. Revisionist cannot neglect or refuse to maintain her wife and children either by words or conduct. Neglect by conduct may means something more than mere failour or omission to maintain. Revisionist is not paying any amount of maintenance and treatment for his children who have no will or volition of their own. Once the fact come before the Court that a husband or father has refused or neglected to maintain his wife and children, offer by him to maintain them in the future is not sufficient in itself to debar a Magistrate from making an order for their maintenance. There is no bar that if wife is taking some money as maintenance/ expenses in the proceeding of Domestic Violence Act. She can claim maintenance/interim maintenance for herself and for her children under Section 125 Cr.P.C.
19. Having regard to the foregoing discussions, I am of the view that order of learned court below is well discussed, there is no illegality or infirmity found in the impugned order. Revision has no force and is liable to be dismissed.
20. Accordingly, revision dismissed. Cost easy.
(Narendra Kumar Johari, J.) Order Date :- 16.11.2019 Krishna