Uttarakhand High Court
Satya Prakash Naithani vs State Of Uttarakhand And Others on 16 November, 2022
Author: Ravindra Maithani
Bench: Ravindra Maithani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 286 of 2022
Satya Prakash Naithani ....Revisionist
Vs.
State of Uttarakhand and Others ..... Respondents
Presents:-
Mr. Neeraj Garg, Advocate for the revisionist.
Mr. Pankaj Joshi, Brief Holder for the State.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral) The challenge in this revision is made to the impugned judgment and order dated 12.05.2022, passed in Case No. 107 of 2020, Smt. Poonam Naithani and Another Vs. Satya Prakash Naithani, by the court of Principal Judge, Family Court, Dehradun, District Dehradun ("the case"). By it, an application for interim maintenance filed by the private respondents have been allowed and the revisionist has been directed to pay Rs. 15,000/- to each of the private respondents per month as interim maintenance.
2. Heard learned counsel for the revisionist and perused the record.
3. The record reveals that the respondent no.2, Smt. Poonam Naithani, who is the wife of the revisionist and Smt. Anshika Naithani, the respondent no.3, who is the daughter of the revisionist, filed an 2 application seeking maintenance from the revisionist under Section 125 of the Code of Criminal Procedure, 1973 ("the Code"). The respondent no.2 and the revisionist were married on 25.09.1998. The respondent no.3 is their daughter. The relationship between the revisionist and the respondent no.2 deteriorated. It has been the case of the respondent no.2 that, in fact, the revisionist had married a woman named Shivani Rawat sometimes in the year 2005 and he has been staying with her. He pleaded for divorce. There were multiple litigations between the parties. It has been the case of the respondent no.2, the wife, that she is not able to maintain herself. Her daughter is dependent on her, whereas, the revisionist is a Draftsman. He is B Tech. (Architecture). He earns Rs. 3 Lacs per month.
4. Based on this application, the proceedings of the case were instituted. In this case, an application for interim maintenance was filed by the respondent nos.2 and 3. It has been objected to by the revisionist on multiple grounds.
5. It is the case of the revisionist that since both the revisionist and the respondent no.2 are not compatible and it had become little impossible for them 3 to carry together, they decided to get divorce. Accordingly, a suit for mutual divorce was filed, which was subsequently withdrawn by the respondent no.2, the wife. The revisionist, in his objections, did not disclose his income. In Para 34 of the objections to interim maintenance application, he writes that he is physically challenged. He earns somehow for his livelihood, whereas, the respondent no.2 earns about Rs. 10,000-15,000/- per month by tuition.
6. After hearing the parties, by the impugned order, the revisionist has been directed to pay Rs. 15,000/- to each of the private respondents per month as interim maintenance. Aggrieved by it, the instant revision.
7. Learned counsel for the revisionist would submit that a major daughter is not entitled to maintenance under Section 125 of the Code. Even under Section 20 of the Hindu Adoptions and Maintenance Act, 1956 ("the Adoption Act"), a married daughter may not be entitled to maintenance unless it is shown that she is not able to maintain herself. Learned counsel for the revisionist also placed reliance on the principle of law as laid down in the case of Abhilasha Vs. Prakash and Others, 2020 SCC OnLine SC 736, to argue that in order 4 to get maintenance, a major daughter has to plead and prove the facts. It is argued that the respondent no.3, the daughter of the parties, has not pleaded that she is not able to maintain herself. The facts have not been proved. It is not one of such cases, in which the respondent no.3 could have got interim maintenance even.
8. Learned counsel for the revisionist also raised the following points in his submission:-
(i) The respondent no.2 is staying separate by mutual consent. Therefore, she is not entitled to maintenance.
(ii) In the impugned order, the income of the revisionist has not been assessed, which makes this order bad in the eyes of law.
(iii) Points for determination have not been formulated in the impugned order.
(iv) The respondent no.3, the daughter, has not filed an affidavit, as required in view of the judgment in the case of Rajnesh Vs. Neha and Another (2021) 2 SCC 324.5
9. It is true that under Section 125 of the Code, a major child is not entitled to maintenance, unless such child is, by reason of any physical or mental abnormality or injury, unable to maintain himself. It is also true that the case is based on an application under Section 125 of the Code, but this argument has less merit for acceptance in view of the judgment in the case of Abhilasha (supra).
10. In the case of Abhilasha (supra), the Hon'ble Supreme Court, inter alia, observed that if a family court has jurisdiction to decide a case under Section 125 of the Code as well as Section 20 of the Adoption Act, a major daughter may also be granted maintenance so as to avoid multiplicity of proceedings. In Para 9, the Hon'ble Supreme Court posed the question for consideration as:-
9. The question to be answered in the present case is as to whether a Hindu unmarried daughter is entitled to claim maintenance from her father under Section 125 Cr.P.C. only till she attains majority or she can claim maintenance till she remains unmarried. Section 125(1) Cr.P.C., which is relevant for the present case is as follows:--
"125. Order for maintenance of wives, children and parents.-- 6 (1) If any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, XXXXXXXXXXXXXXXXXXXXX"
11. In Paras 32 and 33, the Hon'ble Supreme Court considered as hereunder:-
"32. After enactment of Family Courts Act, 1984, a Family Court shall also have the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX of Cr.P.C. relating to order for maintenance of wife, children and parents. Family Courts shall have the jurisdiction only with respect to city or town whose population exceeds one million, where there is no Family Courts, proceedings under Section 125 Cr.P.C. shall have to be before the Magistrate of the First Class. In an area where 7 the Family Court is not established, a suit or proceedings for maintenance including the proceedings under Section 20 of the Act, 1956 shall only be before the District Court or any subordinate Civil Court."
"33. There may be a case where the Family Court has jurisdiction to decide a case under Section 125 Cr.P.C. as well as the suit under Section 20 of Act, 1956, in such eventuality, Family Court can exercise jurisdiction under both the Acts and in an appropriate case can grant maintenance to unmarried daughter even though she has become major enforcing her right under Section 20 of Act, 1956 so as to avoid multiplicity of proceedings as observed by this Court in the case of Jagdish Jugtawat (supra). However the Magistrate in exercise of powers under Section 125 Cr.P.C. cannot pass such order."
12. It is true that in order to get maintenance, the Hon'ble Supreme Court has further observed that the entitlement to such maintenance has to be pleaded and proved. There cannot be any dispute on that proposition. It cannot be said that the application, which has been filed, has to be allowed. The court has to assess the entitlement of the claimant for receiving maintenance.
13. It is also true that in the impugned order, there has been less discussion on the monthly income of 8 the revisionist. The Court wanted to know from learned counsel for the revisionist as to what was the per month income disclosed by the revisionist in his affidavit filed pursuant to the judgment in the case of Rajnesh (supra)? Learned counsel for the revisionist would submit that the income, as such, has not been disclosed, instead, it has been written by the revisionist that he is a disabled and his left hand is not working since long.
14. The Court refrains to make deeper scrutiny at this stage. Suffice to say that the revisionist did not disclose his income. In his objections filed to the interim maintenance application, in Para 34, he writes that he earns his livelihood by taking work from some persons. The question is how much he earns each month? As stated, it is not disclosed. The respondent no.2 has categorically stated that the revisionist earns about Rs. 3 Lacs per month. He is B-Tech (Architecture). Therefore, merely because the assessment of income has not been done, the impugned order cannot be termed as wrong, illegal or improper.
15. It has been argued that the revisionist and the respondent no.2 are staying separate by mutual 9 consent, but learned counsel for the revisionist could not indicate anything on record, which could establish it. It is a fact that a suit for divorce, based on mutual consent, was filed, but fact also remains that it was subsequently withdrawn by the respondent no.2. Filing of a suit for divorce by mutual consent is one thing and staying separate by mutual consent is quite distinct. Under certain circumstances, parties living under one roof may file a suit for divorce based on mutual consent. But, at the same time, there may be situations where parties are not in litigation but staying separate by mutual consent. Therefore, merely because a suit for divorce, based on mutual consent, was filed, it cannot be said that the parties are living separate by mutual consent. This argument also has less merit for acceptance.
16. It is argued that the respondent no.3, the daughter, has not pleaded and proved that she is not able to maintain herself. The impugned order has been passed at the stage of interim maintenance. The application under Section 125 of the Code has been filed jointly by the respondent nos. 2 & 3. The things have been averred, if not pleaded. So far as the proof is concerned, it is a stage, which has yet to come. The application categorically writes that the respondent no.2, 10 the wife, is not able to maintain herself. It also writes that the respondent no.3, the daughter, is dependent on the respondent no.2. It impliedly, but loudly avers that the respondent no.3 is not able to maintain herself. Merely because categorically there is no such averment, it cannot be said that the respondent no.3 has not averred that she is not able to maintain herself.
17. It is also argued that points of determination have not been made. This is not such an objection, which may term the order illegal. The court has recorded a finding on every aspect. It has been the allegation of the respondent no.2, the wife of the revisionist, that the revisionist had married another woman. The impugned order, in Para 7, makes reference to a document, which was obtained under Right to Information Act, 2005, which reveals that the revisionist had married a woman named Shivani Rawat. In his affidavit filed with regard to assets and liabilities, the revisionist has admitted that he is staying in the house of a Shivani Rawat. Does it support the contention of the respondent no.2, the wife of the revisionist that the revisionist had married Shivani Rawat? These all issues would find determination after final determination of the case.
11
18. Having considered the entirety of facts, this Court is of the view that the impugned order is in accordance with law. This Court does not find any illegality, error or impropriety in the impugned order. This Court does not find any reason to make any interference. Accordingly, the revision deserves to be dismissed at the stage of admission itself.
19. The revision is dismissed in limine.
(Ravindra Maithani, J.) 16.11.2022 Ravi Bisht