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2020 DIGILAW 1295 (ALL)

Anup Sahani v. State of U. P.

2020-11-05

RAM KRISHNA GAUTAM

body2020
JUDGMENT : 1. This Criminal Revision, under Section 397/401 of Code of Criminal Procedure, has been filed by Anup Sahani, with a prayer for setting aside the impugned orders dated 12.10.2020 passed by the Court of Additional District and Sessions Judge/ Special Judge, P.O.C.S.O. Act-3, Gorakhpur, in Criminal Appeal No. 19 of 2018, Anup Sahani vs. State of U.P. and another, under Section, 12 of the Protection of Women from Domestic Violence Act, 2005, as well as order dated 08.02.2018 passed by the Additional Chief Judicial Magistrate/Additional Civil Judge (Senior Division), Court No. 4, Gorakhpur, in case No. 61 of 2016, Smt. Sangam Devi vs. Anup Sahani and others, under Section 12 of the Domestic Violence Act, Police Station-Gorakhnath, District-Gorakhpur. 2. Learned counsel for applicant argued, that both of the Courts below failed to appreciate facts and law placed before them and passed impugned orders, which are apparently erroneous on the face of it. There is under exercise of jurisdiction vested in both the above Courts. The impugned order is under violation of natural justice. Objection was raised before the trial Court. But the same were not considered and an amount of Rs. 3,000/-, as maintenance, per month, was directed to be paid to the opposite party no. 2 from the date of application i.e. 30.10.2017 and it was illegal. There is mandatory provision under the provisions of Protection of Women from Domestic Violence Act, that firstly the report of District Probation Officer is to be called for and thenafter, case is to be initiated. But, this was not obeyed, hence, the order was challenged before the appellate Court in Criminal Appeal No. 19 of 2018, Anup Sahani vs. State of U.P., wherein, again reiteration was there but, the appellate Court dismissed the appeal. Hence this revision, with above prayer. 3. Learned A.G.A. has vehemently opposed stating that a meagre amount of Rs. 3,000/- per month was directed to be paid and this revision has been filed. 4. Having heard learned counsel for both sides and gone through the material placed on record, it is apparent, that a complaint was filed by Smt. Sangam Devi, before the Court of Judicial Magistrate, with this contention that her marriage was performed with Anup Sahani, as per Hindu rituals on 20.05.2013. She was performing her matrimonial obligations. But, Anup Sahani and his family members made a demand of Rs. She was performing her matrimonial obligations. But, Anup Sahani and his family members made a demand of Rs. 2,000,00/- as additional dowry, which was beyond the capacity of Smt. Sangam Devi and her family members. This resulted annoyance and cruelty with Smt. Sangam Devi. She was compelled to reside in a room of upper stairs. Her father-in-law committed rape with her. A threat was extended. Subsequently, She was sexually exploited and ousted on 08.11.2014 and since then she is residing at her parental house. A Case Crime No. 10 of 2015 under Section 498-A, 323, 504, 506, 406, 376 I.P.C. read with Section 3/4 of D.P. Act, was registered at Police Station-Mahila Thana, Gorakhpur. It was submitted that Anup Sahani was maintaining a shop of light and sound in Gorakhpur and he was earning Rs. 30,000/- per month. His father, is a retired Railway employee, getting pension but, the complainant was with no means and was living in misery, hence, maintenance, in the tune of Rs. 20,000/- per month, with the right of residence was claimed. Wherein, an application for grant of interim maintenance, under Section 23 of the Act was moved. The contention of the same was in corroboration to many contentions. Anup Sahani, filed his objection, mentioning that the father of the applicant was an agriculturist and having means for maintaining the applicant. The alleged shop of light and sound was of brother-in-law of Anup Sahani. She was earning Rs. 1200/- per day by tailoring. After hearing both the sides, the Magistrate awarded for interim maintenance in the tune of Rs. 3,000/- per month, against which a Criminal Appeal was filed. Wherein, same contention was made, as in this Criminal Revision, with further allegation of loose character of applicant, and Appellate Court dismissed this Appeal. Against which this Revision has been filed. 5. Admittedly, Smt. Sangam Devi is married wife of Anup Sahani. There is criminal litigation pending in between. There is matrimonial discard in between. She is residing at her parental house. No specific proof of her income is there. She is not being maintained by the revisionist. She had claimed for her maintenance and a maintenance of meagre amount of Rs. 3,000/- per month, i.e. Rs. 100/- per day, has been awarded, as interim maintenance. There is matrimonial discard in between. She is residing at her parental house. No specific proof of her income is there. She is not being maintained by the revisionist. She had claimed for her maintenance and a maintenance of meagre amount of Rs. 3,000/- per month, i.e. Rs. 100/- per day, has been awarded, as interim maintenance. It is a meagre amount and being husband the revisionist is duty bound to maintain his wife and he always remains under obligation to maintain his wife which does not arise by reason of any contract, express or implied, but out of jural relationship of husband and wife consequent to the performance of marriage. Such an obligation of the husband, to maintain his wife, arises irrespective of the fact whether he has or has no property. It is an imperative duty and a solemn obligation of the husband to maintain his wife. This has been propounded by the Apex Court in Kirtikant D. adodaria vs. State of Gujarat (1996) 4 SCC and Vimlaben Ajitbhai Patel vs. Vatslaben Ashokbhai Patel and others (2008) 4 SCC, which has been mentioned by the learned Appellate Court in its judgment. 6. The Apex Court in Bhuwan Mohan Singh vs. Meena & Ors., (2015) 6 SCC 353 , in para 2 has held : "Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life “dust unto dust”. It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able bodied. There is no escape route unless there is an order from the Court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds." 7. In above law and facts of the present case, there is no failure of appreciation of facts and law, nor any under exercise or over exercise or mis-exercise of jurisdiction in both the impugned orders. 8. Accordingly, this Revision merits dismissal. Dismissed as such.