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Allahabad High Court · body

2010 DIGILAW 647 (ALL)

DILIP KUMAR v. STATE OF U. P.

2010-02-19

VIRENDRA SINGH

body2010
JUDGMENT Hon’ble Virendra Singh, J.—Revisionist Dilip Kumar, preferred this revision against the judgment and order dated 12.2.2001 passed by Judge, Family Court, Varanasi, in case No. 350 of 1995 (Smt. Sunita v. Dilip Kumar), under Section 125, Cr.P.C. whereby the application of respondent No. 2, Smt. Sunita Devi has been allowed thereby allowing her maintenance to the tune of Rs. 350 only per month from the date of her application dated 29.8.1989. 2. I have heard learned A.G.A on behalf of State of U.P. as well as learned counsel for respondent No. 2, Smt. Sunita Devi. No one appeared on behalf of revisionist. 3. I have gone through the grounds of this revision stating that respondent No. 2 on her own will had left the applicant/revisionist as a result of which the revisionist had filed a suit against her for restitution of conjugal rights. The allegations of re-marriage made by respondent No. 2 against the revisionist are absolutely false and incorrect. The correct fact is that the revisionist still desires to keep his wife with him. Despite this fact, the Court below have illegally allowed the maintenance against the revisionist without recording any finding even in respect of annual monthly income of the revisionist. The monthly maintenance awarded by the Courts below @ Rs. 350 per month is excessive. The Court below has also illegally awarded the maintenance to the respondent No. 2 with effect from her date of application instead of from the date of order. 4. The learned counsel for the respondent as well as learned A.G.A. have submitted that there is no illegality in the impugned order as the learned lower Court has passed the order thereby exercising the jurisdiction vested in the lower Court and the impugned order is very much perfect in the eyes of law as well as on the facts of the case, against which this revision has no force and is liable to be rejected. 5. So far the question of income of the revisionist and the amount of maintenance is concerned the perusal of the record shows that lower Court has itself considered the low income of the revisionist from the sewing work and allowed a meagre amount of Rs. 350/- only as maintenance in which there is no scope of any interference by this Court. 6. 350/- only as maintenance in which there is no scope of any interference by this Court. 6. In the light of the grounds of this revision as well as the contentions of respondents, I have gone through the entire facts and circumstance on record and I do not find any substance in this revision because the impugned order has been passed by the learned lower Court on the basis of evidence adduced before the learned lower Court. Since it reveals on record that the revisionist had married with another women named Meena Devi and since the respondent No. 2 has been neglected by the revisionist, therefore, the learned lower Court has rightly held that the respondent No. 2 is entitled for maintenance and she has sufficient ground for living separately from her husband. A women cannot be forced to live with another wife of her husband. In such circumstance, the women shall be entitled for maintenance from her husband. The explanation provided in sub-section (3) of Section 125, Cr.P.C. is very much clear in this regard, in which it is provided that if a husband has contracted marriage with another women or keep mistress, it shall be considered just ground for a wife’s refusal to live with her husband. Therefore, the ground pertaining to restitution of conjugal rights sought by the revisionist as per one of the ground of this revision has no force. Therefore, the learned lower Court committed no error thereby allowing the maintenance to respondent No. 2. 7. So far as the question of allowing the maintenance from the date of application of respondent No. 2 is concerned, in this regard Section 125(2), Cr.P.C. is very much relevant in which it is provided that any such allowance for the maintenance shall be payable from the date of the order or, if so ordered, from the date of the application for maintenance. It shows that the maintenance can be made payable from the date of application. There is catena of judgments of various High Court as well as the Hon’ble Supreme Court that the Court is required to record the reasons when it awards the maintenance from the date of application. The order if is, silence as to which date it will be effective, it will be deemed effective from the date of order, for which it is not necessary to record the reasons. The order if is, silence as to which date it will be effective, it will be deemed effective from the date of order, for which it is not necessary to record the reasons. Sub-section (2) of Section 125, Cr.P.C also indicates that normally the maintenance shall be payable from the date of order. In this sub-section the words “if so ordered” indicate that if the maintenance is to be allowed from the date of application, it has to be ordered, meaning thereby the Court is required to give the reasons in this regard that the maintenance shall be payable from the date of the application. Here in this case, the learned lower Court has given the reasons that since the application for maintenance moved by the respondent No. 2 remained pending since 29.9.1089 due to delay tactics adopted by the opposite party, the revisionist, therefore, the application for maintenance is liable to be allowed from the date of the application. In these circumstances I do not find any substance on record to interfere in the impugned order which is very much perfect in the eyes of law as well as on the facts of the case. Therefore, this revision deserves to be dismissed and is hereby dismissed accordingly. ————