Allahabad High Court
Vikas Kumar vs State Of U.P. And Another on 14 October, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 87 Case :- CRIMINAL REVISION No. - 969 of 2020 Revisionist :- Vikas Kumar Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Sanjay Kumar Sharma,Ravi Pratap Singh Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
This Revision has been preferred against impugned judgment and order dated 23.12.2019 passed by Additional Principal Judge, Family Court, Moradabad in F.C. Case No. 625 of 2017 (Smt. Shaifali Vs. Vikas Kumar) under Sections 125 Cr.P.C., whereby revisionist has been directed to pay maintenance @ Rs 3000/- per month to his wife / opposite party No. 2.
Heard learned counsel for revisionist, learned AGA for State and perused the record.
It has been argued by learned counsel for revisionist that the impugned order is against facts and law and thus, liable to be set aside. It was submitted that revisionist was already paying Rs. 3000/- per month in compliance of order passed under the provisions of Protection of Women from Domestic Violence Act, 2005 and thereafter, by impugned order under Section 125 Cr.P.C the revisionist has again been directed to pay Rs.3,000/- per month. The revisionist is working as Accountant but his salary is only Rs. 5,000/- per month and in this regard, learned counsel has referred copy of appointment letter. It was further submitted that opposite party no.2 is an educated and skilled lady and she also takes tuitions and thus, she is able to maintain herself. It was submitted that the opposite party no.2 has made false and baseless allegations in the application under Section 125 Cr.P.C. and that she was never harassed by the revisionist. In fact, she is not ready to live with revisionist, In this connection, learned counsel has referred to cross examination of opposite party no.2, wherein she has stated that she is not ready to live with revisionist and that she can live with the revisionist only if, she will be given a security of Rs.5,00,000/-. Learned counsel submitted that in view of above facts the impugned order is liable to be set aside.
Learned AGA has opposed and argued that there is no illegality or error in the impugned order.
Chapter IX of Code of Criminal Procedure deals with the order for maintenance of wives, children and parents. As per section 125 of Cr. P. C. if any person having sufficient means neglects or refuses to maintain his wife, his legitimate or illegitimate minor children whether married or not, and his father or mother unable to maintain themselves, the Magistrate First Class upon proof of such refusal or neglect direct such person to make monthly allowances and to pay the same to such persons from time to time. It is well established that object of grant of maintenance is to afford a subsistence allowance to the wife who is not able to maintain herself. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. Maintenance awarded to a wife is not a bounty rather it is awarded to her so that she can survive. The provisions of maintenance of wives and children intend to serve a social purpose (see Jagir Kaur & Anr. v. Jaswant Singh [AIR 1963 SC 1521]. In Nanak Chand v. Chandra Kishore Aggarwal & Ors [1969 (3) SCC 802], the Supreme Court, discussing Section 488 of the old Cr.P.C, held that Section 488 provides a summary remedy and is applicable to all persons belonging to any religion and has no relationship with the personal law of the parties. In Captain Ramesh Chander Kaushal v. Veena Kaushal and Ors. [AIR 1978 SC 1807], the Court held that Section 125 is a reincarnation of Section 488 of the Cr.P.C. of 1898 except for the fact that parents have also been brought into the category of persons entitled for maintenance. It was observed that this provision is a measure of social justice specially enacted to protect, and inhibit neglect of women, children, old and infirm and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. Again in Vimala (K) v. Veeraswamy (K) [(1991) 2 SCC 375], the Hon'ble Apex Court held that Section 125 of the Code of 1973 is meant to achieve a social purpose and the object is to prevent vagrancy and destitution. It was held that the object of these provisions is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife.
Thus, it is apparent that section 125 of the Cr.P.C. is an ameliorating provision and is designed as a measure of social justice which is specially meant to protect women and children. It is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself. It is precisely for this purpose that under Section 125 of the Cr.P.C. there is a provision for direction for payment of monthly allowance by way of interim maintenance. In fact maintenance is a right which accrues to a wife against her husband since the inception of her getting married with him and a moral as well legal obligation is cast upon the husband to maintain his wife.
Keeping the above mentioned position of law in mind, in the instant case it may be seen that it is not disputed that opposite party no. 2 is legally wedded wife of revisionist and their marriage was solemnized in the year 2017. In her application under Section 125Cr.P.C, the opposite party no. 2 has inter-alia alleged that the revisionist and his family members used to demand a car and cash of Rs 100,000/ as additional dowry and she was harassed on account of dowry. It was also alleged that on 05.08.2017, the revisionist and his family members tried to strangulate her and she was turned out of the matrimonial home and since then she is residing with her parents. On 17.11.2017 the revisionist and his family members came at her parental home and assaulted her. She has also lodged a case under sections 498A, 323,504, 506 IPC and section D.P. Act against them. It was alleged that she has no source of income, whereas the revisionist is working as Accountant and gets Rs 30,000/ per month from there. Besides that, he also take tuitions and he has a house comprising 20 rooms and out of them he has let out 15 rooms and earns 45000/ per month from that. In support of her case, the opposite party no. 2 / wife was examined as P.W 1 and supported her version.
The allegations made by opposite party no. 2 were denied by the revisionist and it was alleged that the allegations made by opposite party no. 2 are false and that she has left the matrimonial home without any just reason. The revisionist has even filed a case under section 9 of Hindu Marriage Act for restitution of conjugal rights. The revisionist is doing a private job and earns only Rs 5000/ per month and the allegations that he has earning from tuitions or letting out rooms, are false. He has further alleged that the opposite party no. 2 is B.A and a trained teacher and she is working as teacher in a primary school and gets salary of Rs 25,000/ per month and that she is also running a dairy. He has alleged that the opposite party no. 2 is able to maintain herself. It was stated she has deserted revisionist without any just cause. Revisionist has also supported his version in evidence and he was examined as DW 1.
It apparent from record that it could not be disputed that the opposite party no. 2 is legally wedded wife of the revisionist and on the basis of evidence, the court below has given finding that as she was subjected to cruelty thus, she has just and sufficient cause to live separately from her husband/ revisionist. It has also been held by the court below that the opposite party no. 2 is not able to maintain herself and that she has not been provided any maintenance by the revisionist so far. Merely because she is an educated lady, it does not mean that she has source of income. The revisionist has failed to produce any satisfactory evidence that she is doing some job or business. On the basis of evidence, the court has found that she has no source of income to maintain herself. Learned counsel for revisionist has referred statement of opposite party no. 2, wherein she has stated that she is not ready to live with revisionist and that she can live with the revisionist only if, she will be given a security of Rs.5,00,000/. In this connection, it may be stated that statement of a witness has to be considered as a whole. A single sentence cannot be appreciated out of context. She has stated that she is not ready to live with revisionist because his sisters would not let her live there. She has also stated that if some financial security is provided and amount of Rs. 4,00,000/-is deposited jointly in the name of her husband and herself, she is ready to live with her husband. Considering entire statement it cannot be said that she is living separately without any just cause. In view of all these facts and circumstances and evidence on record, she is entitled for maintenance.
So far this contention is concerned that revisionist was already paying Rs.3,000/- per month in pursuance to order passed under Protection of Women from Domestic Violence Act, it may be stated that record shows that this plea was not raised before the court below. This plea for first time has been raised in this revision. Further it is well settled that proceedings under D.V. Act and Section 125 of Cr.P.C. are independent of each other. Recently in Case of Shome Nikhil Danani Vs. Tanya Banon Danani, {Special Leave to Appeal(Crl.)No. 6005 of 209}, decided on 22.07.2019, it was held by the Hon'ble Apex Court that High Court was justified in coming to the conclusion that mere passing of an order under Section 125 Cr.P.C. did not preclude respondent from seeking appropriate relief under Protection of Women from Domestic Violence Act, 2005. It may also stated that maintenance granted to the opposite party no.2 under D.V. Act is interim maintenance and thus, the revisionist can raise this issue while that matter is decided finally. Regarding income of revisionist, on the basis of evidence, the court below has held that the revisionist has sufficient income and directed him to pay maintenance of Rs 3000/ per month to the opposite party no. 2. Considering all the aspects of the matter, the quantum of maintenance of Rs. 3000/- per month to opposite party cannot be said to be excessive or arbitrary. The maintenance has been awarded from the date of order.
At this juncture it may be stated that object of Section 397 Cr.P.C. is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. The revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. In this connection reference may be made to a recent case of Hon'ble Apex Court in State of Madhya Pradesh Vs. Deepak [Criminal Appeal No. 485 of 2019] decided on 13.03.2019.
In the instant case in view of the aforesaid facts and circumstances of the case, it can not be said that impugned order is suffering from any patent defect, illegality or error of jurisdiction so as to require any interference by this Court in exercise of powers under revisional jurisdiction.
The instant revision lacks merit and is, accordingly, dismissed.
Order Date :- 14.10.2020 Mohit