Allahabad High Court
Ashutosh Kumar Pandey vs State Of U.P.& 3 Ors. on 3 July, 2010
Court No. - 5 Case :- U/S 482/378/407 No. - 2935 of 2007 Petitioner :- Ashutosh Kumar Pandey Respondent :- State Of U.P.& 3 Ors. Petitioner Counsel :- T.N.Tiwari Respondent Counsel :- Govt.Advocate, Shri Bhoj Raj Singh, Shri Rajiva Dubey Hon'ble Vedpal,J.
The petitioner has filed this petition under Section 482 Cr.P.C. against the judgment and order dated 24.7.2007 and 29.1.2007 passed in Criminal Revision No.115 of 2007 by the learned Additional Sessions Judge, Court No.7, Sitapur and in Crl. Misc. Case No.122 of 2006 in a proceeding under Section 125 Cr.P.C. passed by A.C.J.M.-II, Sitapur contained in Annexure Nos.1 and 2 to the petition, respectively.
Counter and rejoinder affidavit have also been exchanged between the parties.
Heard Shri Tung Nath Tiwari learned counsel for the petitioner, learned A.G.A for the opposite parties nos.1 to 3 as well as Shri Rajiva Dube for the opposite party no.4 .
It reveals from the perusal of the record that Smt. Rakhi ( opposite party no.4 herein ), who is wife of Ashutosh Kumar Pandey (petitioner herein) had filed a petition under Section 125 Cr.P.C. before the learned Additional Chief Judicial Magistrate-II with the prayer that her husband be directed to pay maintenance allowance to her @ Rs.3000/- per month. It was stated by Smt. Rakhi in her petition that she is legally wedded wife of Ashutosh Kumar Pandey who used to harass her for non fulfilment of demand of dowry and ultimately she was turned out by her husband from his house and she is residing with her parents. That she has no means of livelihood while her husband is a Lab Assistant of a private doctor and his monthly income of about Rs.6,000/- per month and as such it is necessary that an amount of Rs.3,000/- be awarded to her as maintenance allowance. The petition was opposed by Shri Ashutosh Kumar Pandey (petitioner herein) on the ground that it is wrong to allege that he ever turned out his wife from his house or he ever coerce or ill treated her on account of non fulfilment of demand of dowry. That his wife does not want to reside with him and wants to reside with her father and she has left his house without any sufficient cause. That it is wrong to allege that he has income of Rs.6,000/- per month and the fact is that he get only Rs.1200/- from a private doctor. That his wife is an educated lady who has passed M.A. and she earn Rs.4000/- per month from tuition and as such the petition deserves rejection.
Both the parties adduced their evidence before the learned Magistrate and on the basis of the evidence adduced by the parties, the learned magistrate was of the view that the wife has sufficient cause to live separately and she has no means of livelihood and the monthly income of husband cannot be assessed more than Rs.1200/- per month, accordingly the learned Magistrate vide order dated 29.1.2007 directed the husband to pay Rs.500/- per month to his wife as maintenance allowance. Feeling aggrieved with this judgment and order passed by the Additional Chief Judicial Magistrate, Sitapur, Smt. Rakhi preferred the Crl. Revision No.115 of 2007 before the learned Sessions Judge. After hearing the parties, learned revisional court was of the view that the monthly income of the husband has been assessed at low rate by the learned Additional Chief Judicial Magistrate and in fact any person who is even a labourer can earn Rs.2,500/- per month and assessed the income of husband @ Rs.5000/- per month and awarded maintenance @ Rs.2000/- per month vide order dated 24.7.2007. Feeling aggrieved with the said judgment and orders stated above, the revisionist who is husband has filed this petition.
I have carefully perused the record of the case alongwith both the impugned judgment and orders.
It reveals from the perusal of the record that both the courts below have held that the petitioner (herein) had neglected to maintain his wife and the wife is entitled to get maintenance allowance from her husband. The main controversy between the parties is in regard to the rate of maintenance. The learned magistrate before whom the evidence was adduced by the parties had assessed monthly income of the husband @ Rs.1200/- per month and an amount of Rs.500/- was awarded as maintenance allowance which was enhanced by the revisional court to the tune of Rs.2000/-.
Learned revisional court was of the view that generally in the present days, a labourer earns Rs.2,500/- per month and as such monthly income of husband cannot be assessed @ Rs.1200/- per month. There was no documentary evidence on record to show that monthly income of the petitioner was Rs.5000/- per month. Thus the monthly income of husband @ Rs.5000/- per month was certainly assessed at higher rate on the basis of surmises without proper and reasonable basis. In the facts and circumstances of the case, taking the basis of a labourer income of the present days, the monthly income of husband could not have been fixed more than Rs.2500/- per month by the learned revisional court particularly when there was no documentary evidence of the income of the husband. Taking the monthly income of husband @ Rs.2500/- per month, it appears proper and reasonable that the rate of maintenance allowance be fixed at Rs.1000/- per month. Learned revisional court should have fixed the maintenance allowance at Rs.1000/- per month. The judgment and order of the learned revisional court to this extent deserves modification. The petition therefore, should be partly allowed to that extent.
Therefore, the petition is allowed. The order of monthly maintenance allowance is fixed @ Rs.1000/- per month. The order passed by the courts below are modified accordingly to this extent. The petitioner Shri Ashutosh Kumar Pandey shall pay to the opposite party no.4 Smt. Rekha, maintenance allowance @ Rs.1000/- per month from the date of this judgment. The arrears, if any, remains outstanding against the petitioner at the old rate of Rs.500/- per month, the same shall also be paid to Smt. Rekha within a period of one month from today.
Order Date :- 3.7.2010 Shukla