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2016 DIGILAW 3055 (ALL)

SUNITA v. STATE OF U. P.

2016-09-07

PRABHAT CHANDRA TRIPATHI

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JUDGMENT Hon’ble Prabhat Chandra Tripathi, J.—Heard Sri Sanjay Mishra, learned counsel for the revisionist, Sri M. Aasif, learned counsel for the opposite party No. 2 and learned A.G.A. for the opposite party No. 1. 2. The revisionist Sunita has filed this revision against the judgment and order dated 1.11.2012 passed by the learned Additional Sessions Judge, Court No. 11, Aligarh in Criminal Revision No. 162 of 2008-Lalit Prasad v. State of U.P. and Sunita, whereby the learned Additional Sessions Judge has partly allowed the criminal revision and confirmed the judgment and order dated 7.2.2008 passed by the learned Judicial Magistrate, Court No. 1, Aligatrh in Case No. 250/11/07-Sunita v. Lalit Prasad, with regard to the maintenance allowance of the daughter Rinkashu and directed that minor daughter Rinkashu will be entitled for the maintenance allowance of Rs. 1500/- per month from the date of judgment and order dated 7.2.2008 till she becomes major. This maintenance allowance shall be given on the 10th day of every Gregorian Calendar month. However, the learned Additional Sessions Judge by the impugned judgment and order dated 1.11.2012 has dismissed the maintenance allowance application of Smt. Sunita (wife). Aggrieved by the said judgment and order, the revisionist Smt. Sunita has preferred this criminal revision. 3. Learned counsel for the revisionist submitted that from the pleadings and evidence of the parties, it is abundantly established that the revisionist is living separately from her husband opposite party No. 2. It is further submitted that an application under Section 125 Cr.P.C. was filed by the revisionist before the learned Judicial Magistrate, Court No. 1, Aligarh which was allowed vide order dated 7.2.2008 with the direction to opposite party No. 2 to pay Rs. 1500/- per month to her and Rs. 1500/- to her minor daughter Rinkashu. The said order was challenged by the husband opposite party No. 2 in Criminal Revision No. 162 of 2008, which has been partly allowed by the impugned judgment and order dated 1.11.2012. It is further submitted that the learned Additional Sessions Judge has committed manifest error of law in passing the impugned order, which is not sustainable in the eyes of law and is liable to be quashed. 4. It is further submitted that the learned Additional Sessions Judge has committed manifest error of law in passing the impugned order, which is not sustainable in the eyes of law and is liable to be quashed. 4. Learned counsel for the opposite party No. 2 and learned A.G.A. opposed the submission advanced by learned counsel for the revisionist and submitted that the impugned judgment and order has rightly been passed by the learned Judicial Magistrate, Court No. 1, Aligarh. 5. The learned Judicial Magistrate, Court No. 1, Aligarh in it’s judgment and order dated 7.2.2008 has discussed in detail all the four issues which were framed in the case. The main issue which has been assailed in the present criminal revision is regarding Issue No. 2 which was framed as “whether the applicant is living separately with her husband due to proper reasons”. This issue has been decided on merits after discussing the evidence available before the learned Judicial Magistrate, Court No. 1, Aligarh. 6. The Issue No. 2 again came up for scrutiny before the learned Additional Sessions Judge, Court No. 11, Aligarh while deciding the criminal revision No. 162 of 2008 and the learned Additional Sessions Judge, Court No. 11, Aligarh has taken a reverse view and decided the Issue No. 2 against the present revisionist Smt. Sunita. 7. In revisional jurisdiction, re-appreciation of evidence has a scope of very narrow compass. 8. The revisional jurisdiction does not postulate re-appreciation of evidence, but that should be appreciated in the light of the limitation on the right to go in appeal, Islamuddin v. State, 1975 Cri LJ 841, 842 (Del HC). 9. However, there is conflicting finding by the learned Judicial Magistrate, Court No. 1, Aligarh and the learned Additional Sessions Judge, Court No. 11, Aligarh regarding appreciation of evidence while discussing and adjudicating upon the Issue No. 2. The Issue No. 2 plays a pivotal role in deciding this case. The ends of justice requires that the Issue No. 2 must be adjudicated afresh. 10. Resultantly, this criminal revision deserves to be allowed. 11. The criminal revision is allowed. 12. The matter is remanded back. The Issue No. 2 plays a pivotal role in deciding this case. The ends of justice requires that the Issue No. 2 must be adjudicated afresh. 10. Resultantly, this criminal revision deserves to be allowed. 11. The criminal revision is allowed. 12. The matter is remanded back. The learned Sessions Judge, Aligarh is directed to decide the Issue No. 2 afresh after appreciation of evidence already available on record, in accordance with law within a period of one month from the date of production of a certified copy of this order.