Allahabad High Court
Mohd. Yunsu vs State Of Up And 2 Ors. on 12 October, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 87 Case :- CRIMINAL REVISION No. - 1587 of 2020 Revisionist :- Mohd. Yunsu Opposite Party :- State Of Up And 2 Ors. Counsel for Revisionist :- Kripa Shanker Mishra,Ghanshyam Ojha,Vashishtha Dhar Shukla Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J.
Heard learned counsel for the revisionist, learned A.G.A. for the State and perused the record.
The instant criminal revision has been preferred against the order dated 24.02.2020 passed by learned Principal Judge, Family court, Banda in case no. 220 IX/2017 (Smt. Shbana Bano And Another vs. Mohd. Yunsu), by means of which application filed by opposite party no. 2 under Section 125 Cr.P.C. has been allowed and the revisionist was was directed to pay Rs. 3,000/- per month to opposite party no. 2 and Rs. 500/- per month to opposite party no. 3 from the date of application.
It has been argued by learned counsel for the revisionist that the impugned order is against facts and law and the revisionist has always been ready to keep opposite party nos. 2 and 3 with him, but opposite party no. 2 is not ready to live with him. It was submitted that the revisionist is a labourer and that he earns only Rs. 100/- per day and thus, he is unable to pay the maintenance amount as has been awarded by the court below. It was further submitted that the court below has not taken into consideration the financial condition of the revisionist and that the maintenance amount awarded by the court below is highly excessive and arbitrary.
On the other hand, learned A.G.A. has opposed the revision and argued that there is no illegality, perversity and 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. 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 [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, a three-Judge Bench of 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 the provision provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. From above stated case laws the legal position is quite clear that Section 125 Cr. P.C is a measure of social legislation and is to be construed liberally for the welfare and benefit of the wife and children.
In the instant case, perusal of record shows that it is not disputed that opposite party no. 2 is legally wedded wife of the revisionist and opposite party no.3 is their minor son. In her application under Section 125 Cr.P.C., opposite party no. 2 has alleged that her marriage with the revisionist was solemnized in the year 2015 and that after marriage, she was harassed for dowry and ultimately, she was sent to her parental home. Both the parties have led their evidence before the court below. On the basis of evidence, the court has rendered finding that opposite party no. 2 has sufficient reasons to live separately from her husband and that she has no source of income to maintain herself and her minor child. Regarding income of the revisionist, opposite party no. 2 has alleged that he is doing business of firecracker and he is also doing the work of tailor and that the revisionist has sufficient income from the said business. In view of the facts and evidence on record, the court below has awarded Rs. 3,000/- per month to opposite party no. 2 and Rs. 500/- per month to opposite party no. 3. In view of all attending facts and circumstances, it cannot be said that the amount of maintenance awarded by the court below is highly excessive or arbitrary. So far as this fact is concerned that maintenance has been granted from the date of application, it may be stated that the court below has given sufficient reasons for award of maintenance from the date of application.
At this juncture it may be stated that object of section 397 CrPC 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 evidence on record, 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.
So far as this contention is concerned that from the last 9 to 10 months, income of the revisionist is adversely affected due to Covid-19 Pandemic, in this connection, it is directed that in case, revisionist moves an appropriate application before the court below with regard to pay the arrears of maintenance in instalments, the court below shall pass appropriate order thereon, in accordance with law.
With the aforesaid observations, the instant criminal revision is dismissed.
Order Date :- 12.10.2020 Anand