Allahabad High Court
Putul Shahani vs State Of Up And Another on 21 October, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved On 30.09.2020 Delivered On 21.10.2020 Court No. - 87 Case :- CRIMINAL REVISION DEFECTIVE No. - 696 of 2020 Revisionist :- Putul Shahani Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Mohammad Waseem Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
1. This Criminal Revision has been preferred against order dated 14.01.2020 passed by learned Additional Principal Judge, Family Court, Court No.1 Varanasi, whereby applicant has been directed to pay maintenance @ Rs. 2,000/- per month to his wife/opposite party no.2 and Rs.1,000/- per month each to four minor children.
2. It has been argued by learned counsel for revisionist that impugned order is against facts and law and that it has been passed without considering relevant facts. Revisionist is working as a boatman (navik) and he is hardly earning Rs. 4,000/- per month and thus, he is not in position to pay the maintenance awarded by the court below. It was submitted that in marriage case no. 508/2015 vide order dated 15.12.2018 of Family Court, the opposite party no.2 was directed for restoration of conjugal rights but she has not complied with the said order. The opposite party no.2 has deserted applicant without any just cause but this fact has not been considered by the court below. The allegations of opposite party no.2 that she was harassed by revisionist on account of dowry are false and baseless. Further, opposite party no.2 has sufficient means to maintain herself and the minor children. It was submitted that in view of entire facts, the opposite party no.2 is not entitled for any maintenance and thus, the impugned order is liable to be set aside.
3. Learned AGA has opposed the Revision and submitted that there is no illegality or error of jurisdiction in the impugned order.
4. Heard learned counsel for revisionist, learned AGA for State and perused record.
5. 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 Court 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. It is awarded to her so that she can survive. The fact that time is spent between the date of the application and a final adjudication and an award in favour of the wife, does not mean that she had enough funds to maintain herself. The provisions of maintenance of wives and children intend to serve a social purpose ( Jagir Kaur & Anr. v. Jaswant Singh [AIR 1963 SC 1521].
In Nanak Chand Vs. 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 Cr.P.C. 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], it was 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.
Thus, it is apparent that Section 125 of the Cr.P.C. is an ameliorating provision and 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. In fact maintenance is a right which accrues to a wife against her husband since the inception of her getting married with him and that a moral as well as legal obligation is cast upon the husband to maintain his wife.
6. 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 that out of the marriage they have four children. In her application under Section 125 Cr.P.C., the opposite party no. 2 has inter-alia alleged that the revisionist used to demand a pulsar motorcycle or cash of Rs.85,000/ as additional dowry and she was harassed on account of dowry. It was also alleged that on 10.10 2014 the revisionist has assaulted her and she along with her children was turned out of her matrimonial home and since then she along with four children is living with her parental family and that she has no source of income to maintain herself and her four minor children. She has also alleged that the revisionist is a boatman and earning Rs.30,000/- per month by ferrying boat. The opposite party no. 2/ wife was examined as P.W.1 and her mother Savitri Devi was examined as PW-2.
7. The allegations made by opposite party no. 2 were denied by the revisionist and it was alleged that neither any demand of dowry was made nor she was harassed by him. In fact the opposite party no.2 often used to fight with him and she used to insult the revisionist with help of her parental family. It was alleged that the opposite party no. 2 herself has left his home without any just reason and she was pressurising him to live as 'gharjamai', On 03.05.2015 he tried to bring her back but she refused by saying that he has to live as a 'gharjamai'. Further the revisionist has filed a petition under Section 9 of Hindu Marriage Act for restitution of conjugal rights and thus, she has deserted the revisionist without any just cause. It was further alleged that revisionist sails a boat as labourer and earns only Rs 200/- per day and that he gets work only for 18-20 days in a month, whereas the opposite party no. 2 is able to maintain herself and her four children. In evidence, revisionist has been examined DW-1 and one Gajanand as DW-2.
8. It is apparent from record that it not disputed that the opposite party no. 2 is legally wedded wife of revisionist and out of the marriage, they have four minor children. It is further not disputed that she along with her four minor children is living at her parental home and that she has not been provided any maintenance so far. On the basis of evidence of both the parties, the learned Family Court has observed that the opposite party no. 2 has just and sufficient reasons to live separately from her husband/revisionist and that she has not been provided any maintenance by the revisionist so far. No doubt the opposite party no. 2 has accepted in her statement that she works as domestic help in house of others and earns Rs500-600/- per month but on that basis it cannot be termed that she is able to maintain herself and her four minor children. It is clear that for survival of herself and her four minor children she is working as domestic help by doing house hold work but it does not mean that she has means to maintain herself and her four children . On the other hand, it is not disputed that revisionist works as a boat sailor. Though, revisionist has stated his income as Rs.200/- per day whereas opposite party no. 2 has alleged that his income is about 25000-30,000/- per month but considering entire facts, it appears that he has sufficient means to provide maintenance to his wife and four children. After considering evidence of both the parties, the court below has found that revisionist has means to provide maintenance to his wife and four children. This fact cannot be ignored that the opposite party no. 2 is maintaining four minor children. It is legal as well moral obligation of revisionist to maintain his wife and minor children. After long time of marriage and having four children, the revisionist cannot be allowed to abandon his wife and four minor children to their mercy. After going through the averments and evidence of both the parties, it is apparent that the court below has considered entire facts and evidence in correct perspective and rendered just and proper findings. No material error or perversity could be shown in the impugned order.
9. On the basis of evidence, the court has found that opposite party no. 2 has sufficient cause to reside separately from her husband and that she has no source of income to maintain herself and her minor children. Considering entire facts and evidence of both the parties, it cannot be said that findings rendered by the court below are not based on facts and evidence. In view of all the facts and circumstances of the case and evidence on record, the opposite party no. 2 and her four minor children are entitled for maintenance and the quantum of maintenance of Rs.2000/- per month to opposite party no. 2 and Rs 1000/ pm each for four minor children cannot be said to be excessive or arbitrary. Further, the maintenance has been awarded from the date of order.
10. 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 findings 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.
11. In the instant case in view of the aforesaid facts and circumstances of the case, it cannot 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.
12. The instant revision lacks merit and is, accordingly, dismissed.
Order Date:-21.10.2020 Mohit