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2012 DIGILAW 571 (ALL)

PUSHPAWATI DEVI v. STATE OF U. P.

2012-03-02

RAMESH SINHA

body2012
JUDGMENT Hon’ble Ramesh Sinha, J.—Heard Sri Shiv Dayal Tiwari, learned counsel for the revisionist, learned AGA for the State and perused the record. 2. This revision has been preferred against the order dated 17.7.2007 passed by the Additional District and Sessions Judge 1st, Basti, by which the revision filed by the opposite party No. 2, Arun Kumar, has been allowed and the order dated 15.7.2006 passed by Special Magistrate, Basti, granting the interim maintenance of Rs. 450/- per month to the revisionist Smt. Pushpa Devi has been set aside. 3. Brief facts giving arise to the present revision is that the marriage between the revisionist Smt. Pushpa Devi and the opposite party No. 2 Arun Kumar was solemnized in the year 1988. After the Gauna Ceremony in the year 1990, the revisionist started living with her husband opposite party No. 2 and performed her matrimonial obligations. Her husband used to the perform the work of Purohit in Delhi and Village Jabar and from which he used to earn Rs. 40,000-50,000/- per month. Besides this, he had sufficient agricultural land in Village Sakunati from which he also had a good source of income. The opposite party No. 2 used to harass the revisionist and treated her cruelly and deserted her and did not maintain her, hence she prayed that Rs. 5,000/- per month be paid to her as maintenance by her husband, opposite party No. 2, for which she moved an application under Section 125 Cr.P.C. and also alongwith it moved an application for interim maintenance claiming Rs. 3000/- per month as her husband had a good source of income. The revisionist was ousted by her husband in the year 2002 who had assaulted and treated her in a cruel manner. On 30.6.2002, a compromise was entered between the revisionist and the opposite party No. 2 and the revisionist returned to her husband house and started living with him. But in the year 2002 the revisionist again started ill treating and torturing the revisionist and she was again ousted by opposite party No. 2 in July, 2002. On 19.9.2002, an application under Section 125 Cr.P.C. was moved by the revisionist claiming maintenance from her husband opposite party No. 2 for Rs. 5000/- per month, on which an objection was filed by the opposite party No. 2 on 14.11.2005. On 4.1.2006, the revisionist also filed an application for interim maintenance claiming Rs. On 19.9.2002, an application under Section 125 Cr.P.C. was moved by the revisionist claiming maintenance from her husband opposite party No. 2 for Rs. 5000/- per month, on which an objection was filed by the opposite party No. 2 on 14.11.2005. On 4.1.2006, the revisionist also filed an application for interim maintenance claiming Rs. 3000/- per month from opposite party No. 2 on which an objection was also filed by the opposite party No. 2 on the interim maintenance application on 7.2.2006. 4. Learned Magistrate vide order dated 15.7.2006 granted interim maintenance of Rs. 450/- per month to the revisionist looking to the needs of the wife to maintain herself. The opposite party No. 2 being aggrieved by the order dated 15.7.2006 passed by the Special Judicial Magistrate, Basti granting interim maintenance to the revisionist, preferred a criminal revision No. 695 of 2006 (Arun Kumar v. State of U.P. and another) and the Lower Revisional Court allowed the said revision of opposite party No. 2 and set aside the order dated 15.7.2006 granting interim maintenance to the revisionist vide order dated 17.7.2007. Hence the present revision has been filed by the revisionist being aggrieved by the order dated 17.7.2007 passed by the Lower Revisional Court. 5. It is contended by the learned counsel for the revisionist that the Lower Revisional Court has passed an illegal order setting aside the order of the Magistrate granting interim maintenance of Rs. 450/- per month on erroneous considerations and further has shifted the burden of proof on the revisionist as she failed to refute the allegations regarding her marriage in the year 2000 with one Vikram on 15.1.2000, though the burden of proof was on the opposite party No. 2 to lead the evidence before the trial Court regarding the marriage of the revisionist with Vikram. It was then urged that the Lower Revisional Court has committed an error in law in recording a finding that the learned Magistrate has wrongly exercised his power and granted interim maintenance to the revisionist. Hence the order passed by the Lower Revisional Court is liable to set aside by this Court. On the other hand, learned AGA has tried to justify the order passed by the Lower Revisional Court. 6. Hence the order passed by the Lower Revisional Court is liable to set aside by this Court. On the other hand, learned AGA has tried to justify the order passed by the Lower Revisional Court. 6. Having considered the submissions advanced by the learned counsel for the parties, I am of the opinion that the fact regarding the second marriage of the revisionist with one Vikram or that the revisionist without any sufficient reason is living away from her husband is a matter of evidence, which has to be proved before the trial Court by leading evidence by the parties. 7. The trial Court has rightly observed that the opposite party No. 2 in his reply to the application under Section 125 Cr.P.C. has admitted that the revisionist is his wife. Further, the trial Court found that the revisionist was ousted by opposite party No. 2 in the year 2000 after assaulting her and the allegation of opposite party No. 2 that she had married in the year 2000 appears to be not correct as she filed an application under Section 125 Cr.P.C. on 19.9.2002 claiming maintenance from opposite party No. 2 after she was ousted by him in the year 2002. The fact that the revisionist had performed second marriage or she without sufficient reason is living separately from her husband is a matter of evidence, which has to be proved by either of the parties by leading evidence to the said fact. Hence under the said circumstance, the learned Magistrate has rightly granted interim maintenance of Rs. 450/- per month to the revisionist. Thus, the order of the Lower Revisional Court setting aside the order of the Magistrate is not sustainable in the eyes of law as the fact about the second marriage or that the revisionist is living separately from her husband opposite party No. 2 without any reason, has to be adjudged by evidence. Hence the impugned order dated 17.7.2007 passed by the Additional Sessions Judge 1st, Basti is liable to be set aside and is hereby set aside and the order granting interim maintenance of Rs. 450/- per month to the revisionist passed by the Magistrate vide order dated 15.7.2006 is hereby restored. The opposite party No. 2 is directed to pay the interim maintenance of Rs. 450/- per month to the revisionist passed by the Magistrate vide order dated 15.7.2006 is hereby restored. The opposite party No. 2 is directed to pay the interim maintenance of Rs. 450/- per month to the revisionist as ordered by the learned Magistrate from the date of passing of the order dated 15.7.2006. The parties are directed to appear before the trial Court concerned within three weeks from today and the learned Magistrate may proceed to hear the application under Section 125 Cr.P.C. of the revisionist and decide the same in accordance with law as expeditious as possible. In view of the above, the revision is accordingly, allowed. ——————