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2016 DIGILAW 3848 (ALL)

YOGENDRA PAL @ YOGESH KUMAR v. STATE OF U. P.

2016-11-30

ALOK KUMAR MUKHERJEE

body2016
JUDGMENT : 1. The case was listed on 28.11.2016, but none present on behalf of the revisionist. Again the case was listed on 29.11.2016, but no one present on behalf of the revisionist then the case was directed to be listed on 30.11.2016. Hence, the case was listed today, i.e., on 30.11.2016 as fresh. 2. List revised, but no one present on behalf of the revisionist to press this revision, despite repeated calls. Learned A.G.A. for the State is present. 3. For want of prosecution from the side of the revisionist, the instant revision is hereby decided on merits. 4. Heard the learned AGA for the State. 5. The present criminal revision has been filed against the judgment and order dated 29.07.2016 passed by the Addl. Sessions Judge, Fast Track Court, Etah in Case No. 67 of 2016 (Smt. Dhan Devi and her two minor children Vs. Yogendra Pal), under Section 125 Cr.P.C., P.S. Jaithara, District Etah, whereby the learned trial judge has awarded maintenance of Rs. 3,000/- per month for opposite party no.2-wife and Rs. 2,500/- per month for each of the opposite parties no. 3 and 4 (minor children); consequently, total of Rs. 8,000/- per month has been awarded as maintenance in favour of the opposite parties no. 2 to 4, on the ground that the revisionist-husband has no sufficient means of income. Further, the learned trial judge has wrongly presumed that the earning of the revisionist as Rs. 20,000/- per month, whereas the trial judge after discussing the evidence has held in the impugned judgement that the revisionist-husband is earning only Rs. 10,000/-. Therefore, there is no justification for awarding maintenance to the tune of Rs. 8,000/- per month to the opposite parties. Moreover, the father of the revisionist has died and the revisionist is also taking care of his mother. The finding of the learned trial judge is based on no evidence and is devoid of sufficient reasons. 6. From perusal of the record, it appears that the opposite party no.2 to 4 on 21.06.2012 had filed an application under Section 125 Cr.P.C. before the court below for providing them maintenance from the revisionist (husband of opposite party no.2 and father of opposite parties no. 3 and 4). 6. From perusal of the record, it appears that the opposite party no.2 to 4 on 21.06.2012 had filed an application under Section 125 Cr.P.C. before the court below for providing them maintenance from the revisionist (husband of opposite party no.2 and father of opposite parties no. 3 and 4). On perusal of the impugned judgment and order, it reveals that the learned trial judge after exchange of pleadings and recording/filing of evidence led by the parties and after considering the material on record, vide the impugned judgment and order dated 21.06.2012, has recorded the finding that the opposite party no.2 is the legally wedded wife of the revisionist and both the opposite parties no. 3 and 4 are their children out of the said wedlock. While deciding the application under Section 125 Cr.P.C. in question, the learned court below framed three issues which are as follows:- (i) Whether the revisionist had sufficient means? (ii) Whether there was any negligence on the part of the revisionist to maintain the opposite parties no. 2, 3 and 4? (iii) Whether the opposite party no. 2 wife was able to maintain herself and her children (opposite party nos. 3 and 4)? 7. After considering the submissions and evidence led by the parties, the learned court below had decided all the issues in favour of the opposite parties no. 2, 3 and 4 by a detailed and speaking judgment, giving the specific finding on each and every issues, discussing the evidence of the parties on record. 8. Perusal of the findings of the learned trial judge it manifests that the findings of the trial judge is devoid of any perversity, illegality or impropriety. There is also no material irregularity or incorrectness in the procedure adopted by the learned trial judge while deciding the application in question. The impugned judgement and order is based on cogent evidence and is a reasoned one. It also reflects from the judgment in question that the revisionist has malafidely delayed the proceeding of the case. More so, he absented himself at the stage of the arguments. The impugned judgement and order is based on cogent evidence and is a reasoned one. It also reflects from the judgment in question that the revisionist has malafidely delayed the proceeding of the case. More so, he absented himself at the stage of the arguments. However, the learned trial judge has decided the case on merits, discussing the entire evidence on record by supporting his findings, with the leading decisions of this Court as well as the Apex Court in the matter and has correctly awarded the quantum of maintenance to the opposite parties from the date of the application dated 21.06.2012. 9. From the material on record it appears that in his evidence, the revisionist/OPW-1 Yogendra Pal has admitted that he was not maintaining the opposite parties since the date she along with her children was living in her parental house. The cause of desertion has also been admitted by the said witness, which is his living in adultery. There is definite finding of the court below about the sufficient means of the revisionist and also with regard to the absence of any means of livelihood to the deserted opposite parties. The factum of marriage has not been disputed, whereas there is a categorical admission with regard to the marriage. All the pleas raised during the inquiry were considered and dealt with properly by the learned trial judge while deciding the issues. The learned trial judge has decided all the issues in favour of the opposite parties no. 2 to 4 with cogent findings and on the basis of which the impugned order of maintenance has been passed. The quantum of earning of the revisionist-husband at one place, has been written as Rs. 10,000/-, instead of Rs. 20,000/-, is only a typographical/ clerical error. 10. It is settled principle of law that when through the objective facts and circumstances, including the correspondence, proved that the husband failed or neglected to maintain the wife and his children, whereas the husband lived with his mistress/another woman/concubine, the Court, who had appreciated the evidence, can grant maintenance to the wife, finding the husband's neglect. 11. 10. It is settled principle of law that when through the objective facts and circumstances, including the correspondence, proved that the husband failed or neglected to maintain the wife and his children, whereas the husband lived with his mistress/another woman/concubine, the Court, who had appreciated the evidence, can grant maintenance to the wife, finding the husband's neglect. 11. All the grounds raised in support of the revision relates to the appreciation of the evidence, which was prerogative of the learned trial judge to appreciate and if the learned trial judge has placed reliance on the evidence of the opposite party no.2- wife and there appears no any major illegality, perversity or impropriety in the findings of the trial court or material irregularity or incorrectness in the procedure adopted by the trial court or the reasons recorded by him, this Court would not interfere and proceed to appreciate the evidence again. This is not a case where the finding recorded by the learned trial judge is based on no evidence or the evidence led is not admissible in evidence. 12. As the learned judge has held that the matrimonial relationship exists between the parties, therefore, the purpose of revisional jurisdiction is to rectify only the miscarriage of justice, if any. The main consideration is whether substantial justice has been done in the case in hand from the perusal of the record or not. It clearly manifests from the record that substantial justice has been done in the matter. Therefore, the finding of fact in maintenance proceeding cannot be reversed on fresh appreciation of evidence by the revisional court. The revisional Court have been loathe to interfere with a finding of fact, when such finding is perverse or based on gross error. The finding of fact in a proceeding under Section 125 Cr.P.C. that the husband, having sufficient means, had neglected and refused to maintain the wife and children, based on appreciation of evidence, cannot be interfered with a revision as held by the Apex Court in the decision of State of Orisa Vs. Nakula Sahu AIR 1979 SC 663 and the decision of this Court in the case of Mithlesh Kumari Vs. Vindhawasni 1989 All. L.J.443. 13. Nakula Sahu AIR 1979 SC 663 and the decision of this Court in the case of Mithlesh Kumari Vs. Vindhawasni 1989 All. L.J.443. 13. Having gone through the impugned judgement and order as well as entire material on record, it appears that the court below has considered all the necessary ingredients contemplated under Section 125 Cr.P.C. and has passed the reasoned and speaking order on merits. Therefore, this Court is of the opinion that no illegality, impropriety, perversity, material irregularity or incorrectness has been committed by the court below in passing the impugned judgment and order. The amount of maintenance awarded in this case is also just and proper and granting the same from the date of the application, i.e., 21.06.2012 is also proper and as per law. There appears no justification for interference in the impugned judgment and order. 14. Accordingly, the revision is bereft of merit and is dismissed. 15. Let a copy of the order be transmitted to the trial court forthwith for information and necessary compliance.