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2020 DIGILAW 1484 (ALL)

Abhimanu Pandey v. State Of U. P.

2020-12-14

SURESH KUMAR GUPTA

body2020
JUDGMENT : 1. This criminal revision has been filed by the revisionist against the order dated 14.5.2019 passed by learned Principal Judge, Family Court, Gorakhpur in Criminal Case No. 313 of 2017 (Smt. Priyanka Pandey Vs. Abhimanu Pandey) under section 125 Cr.P.C., whereby application of maintenance of respondent no. 2 has been allowed and the present revisionist has been directed to pay Rs. 19,000/-per month from the date of order to respondent no. 2 as her maintenance on 11th day of each month. 2. The facts and circumstances giving rise to this revision are that the revisionist and respondent no. 2, Smt. Priyanka Pandey, got married on 9.7.2008 according to Hindu Rites and Rituals and at the time of said marriage, father of respondent no. 2 has given Rs. 3,00,000/-in cash to the family of revisionist as dowry. After some time on 28.4.2012, a baby boy namely, Abhiraj, born out of the said wedlock. For certain reasons, relationship between husband and wife becomes strained and due to harassment and additional demand of dowry, revisionist as well as family member of revisionist left respondent no. 2 at her paternal house. So respondent no. 2 has filed an application under section 125 Cr.P.C. for her maintenance alleging that revisionist has refused to maintain her. Learned Family Court after taking evidence of both the sides, on 14.5.2019 passed an order in favour of respondent no. 2, awarding Rs. 19,000/-as maintenance to the respondent no. 2. Being aggrieved with the said order, this revision has been filed by the revisionist against respondent no. 2. 3. Learned counsel for the revisionist stated that marriage of revisionist and respondent no. 2 namely, Smt. Priyanka Pandey, was solemnized on 9.7.2018 according to Hindu rites and rituals in very simple manner and there were no demand of dowry by revisionist or his family members. After marriage, bidai of respondent no. 2 was held in 2010 and after a short period of living with respondent no. 2, the revisionist came to know that she is very outrageous, open minded and was not willing to co-ordinate with family members of revisionist. Revisionist tried his best to understand respondent no. 2 but she always refuses. On 28.4.2012 a baby boy namely, Abhiraj, born out of the said wedlock, who was suffered from Cerebral Palsy (hereinafter referred as C.P. child). Revisionist tried his best to understand respondent no. 2 but she always refuses. On 28.4.2012 a baby boy namely, Abhiraj, born out of the said wedlock, who was suffered from Cerebral Palsy (hereinafter referred as C.P. child). Father of revisionist died in the year of 2013 and mother died in the year 2014. The revisionist, being eldest in the family was left by his parents with liability of his two sisters and one brother. Revisionist arranged marriage of his sister in which he spent about Rs. 24,00,000/-(Twenty Four Lacs) as well as he has taken a loan of Rs. 10,00,000/-(Ten Lacs) from a co-operative society for marriage of her sister, which is still being paid monthly from salary of revisionist by means of installments of Rs. 22,880/-per month. Revisionist is a Development Officer in LIC and his salary is approximately Rs. 58,000/-in hand per month. Revisionist is only earning member of his family and there are liability of his second sister namely, Km. Nisha Pandey, and his C.P. child son namely, Abhiraj, whose treatment is going on in Apolo Hospital, Delhi. Due to illness of his son, revisionist is facing huge medical expenditure. It is also submitted that on 2.9.2015, respondent no. 2 left her in-laws house and went back to her parental house with clothes and jewellery leaving behind her mentally challenged son. Revisionist tried his best to pacify his matrimonial dispute and also filed a case for restitution of husband and wife under section 5 of The Hindu Marriage Act in which respondent no. 2 willfully commit default and never appeared before the court. Respondent no. 2 also lodged a criminal case under section 498-A I.P.C. and 3/4 of D.P. Act at Mahila Police Station, Gorakhpur in which the Investigating Officer filed final report in favour of the revisionist. Respondent no. 2 also filed a case against the revisionist under Domestic Violence Act before the District and Sessions Judge, Gorakhpur, which is still pending. 4. That respondent no. 2 filed an application under section 125 Cr.P.C. in which after receiving notice of maintenance, revisionist filed a written statement and also filed several evidence regarding the fact that respondent no. 2 has left the revisionist and his house without any reasonable excuse. 4. That respondent no. 2 filed an application under section 125 Cr.P.C. in which after receiving notice of maintenance, revisionist filed a written statement and also filed several evidence regarding the fact that respondent no. 2 has left the revisionist and his house without any reasonable excuse. Learned Family Court without considering any fact brought by the revisionist and without considering the material evidence regarding expenses of treatment of his physically challenged son as well as without considering the amount of loan passed impugned order of maintenance of Rs. 19,000/-per month in favour of respondent no. 2. 5. That learned Family Court did not consider this fact that revisionist has also absolute right over his income and by means of impugned order rights of dependents of the revisionist has been curtailed. Without discussing any material fact in this regard as well as without considering the emphasis of section 125 (4) Cr.P.C., learned Family Court has passed the impugned order. Learned Family Court passed the order only on the basis of surmises and conjectures and wrongly and illegally awarded maintenance of Rs. 19,000/-per month in favour of respondent no. 2 from the date of order without considering the financial burden of revisionist. On this allegation learned counsel prayed to allow this revision as well as to set aside the impugned order passed by the Family Court. 6. Learned counsel for the revisionist has raised issues that, (i) findings of facts recorded by the Family Court are contrary to the evidence on record and being perverse, the same are liable to be set aside and the maintenance fixed is excessive. 7. Learned counsel for the respondent no. 2 and learned A.G.A. opposed the prayer of the revisionist by submitting that after getting birth of a C.P. child, behaviour of family of revisionist become violent against respondent no. 2. Despite that she always tried to maintain her relation as well as to understand her husband but they did not understand and used to threat to divorce her. It is further submitted that respondent no. 2 is a very sober and calm lady but revisionist is very modern type so he always used to taunt her the he do not want to keep her in his house as his wife, and he will do second marriage. It is further submitted that respondent no. 2 is a very sober and calm lady but revisionist is very modern type so he always used to taunt her the he do not want to keep her in his house as his wife, and he will do second marriage. That revisionist is a Development Officer in LIC of India and as per his salary slip his salary is Rs. 63,000/-(Rs. Sixty Three Thousand) per month and including commission, his salary is above Rs. 1,00,000/-(one lakh) per month. Father of the revisionist was a government employee and brother of the revisionist is also a government bank employee, then statement of the respondent of taking loan is only for misguiding the court. On the other hand, father of the respondent no. 2 is a 65 years old senior citizen and her mother is a house wife, her brother works in a private company for livelihood. Revisionist has forcefully kept son of respondent no. 2. Revisionist is a government employee, whose income is above one lakh rupees per month while respondent no. 2 is a helpless house wife and she has no source of income to fulfill her necessary requirements. It is lastly submitted that respondent no. 2 always wants to live with her husband but revisionist don't. Thus, order dated 14.5.2019 passed by learned family court does not warrant any interference, and revision is liable to be dismissed. 8. I have considered the rival submissions made by the learned counsel for the parties and the written submissions filed on behalf of the revisionist. 9. The provisions of Section 125, Cr.P.C. is to provide for a social justice falling within the swim of Articles 15 (3) and 39 of the Constitution of India, which have been enacted to protect the weaker section of the society like women and children. It is in the form of secular safeguard irrespective of personal law of the parties. The object is to compel a man to perform moral obligations towards the society in respect of maintaining his wife, children and old parents so that they may not face destitution and become the liability of the society or may be forced to adopt a life of vagrancy, immorality and crime for their subsistence or go astray. The proceedings are summary in nature and provide for a speedy remedy against starvation of a deserted wife, children or indigent parents. The proceedings are summary in nature and provide for a speedy remedy against starvation of a deserted wife, children or indigent parents. To enforce the substantial issues of civil law, the only remedy available is in Civil Court, therefore, findings recorded in proceedings under Section 125, Cr.P.C. are not final and parties are always at liberty to agitate their rights in Civil Court. Order under Section 125, Cr.P.C. does not finally determine the status, rights and obligations of the parties and it only provides for maintenance of indigent wives, children and parents. 10. The case requires to be considered not only bearing in mind the aforesaid proposition of law but also considering that the powers of Revisional Court against such an order are very limited for the reason that in revisional jurisdiction the Court satisfies itself as to the correctness, legality and propriety of any finding, sentence or order and as to the regularity of the proceedings of the inferior Criminal Court. 11. In Amur Chand Agrawal v. Shanti Bose and Anr., AIR 1973 SC 799 , the Hon'ble Supreme Court has held that the revisional jurisdiction should normally be exercised in exceptional cases when there is a glaring defect in the proceedings or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice. 12. In State of Orissa v. Nakula Sahu, AIR 1979 SC 663 , Hon'ble Supreme Court, placing reliance upon a large number of its judgments including Akalu Aheer v. Ramdeo Ram, AIR 1973 SC 2145 , held that the power, being discretionary, has to be exercised judiciously and not arbitrarily or lightly. The Court held that "judicial discretion, as has often been said, means a discretion which is informed by tradition methodolised by analogy and discipline by system". 13. In State of Karnataka v. Appu Balu Ingele, AIR 1993 SC 1126 =II (1992) CCR 458 (SC), Hon'ble Supreme Court held that in exercise of the revisional powers, it is not permissible for the Court to reappreciate the evidence. In Pathumma and Anr. v. Muhammad, AIR 1986 SC 1436 , the Apex Court observed that High Court "committed an error in making a re-assessment of the evidence" as in its revisional jurisdiction it was "not justified in substituting its own view for that of the learned Magistrate on a question of fact". 14. In Pathumma and Anr. v. Muhammad, AIR 1986 SC 1436 , the Apex Court observed that High Court "committed an error in making a re-assessment of the evidence" as in its revisional jurisdiction it was "not justified in substituting its own view for that of the learned Magistrate on a question of fact". 14. If the instant case is examined in view of the aforesaid settled legal propositions, it is not permissible for the Court to reappreciate the evidence. More so, there is nothing on record to show that the findings of facts recorded by the Family Court are perverse, based on no evidence or have been arrived contrary to the evidence on record. 15. Maintenance under Section 125 includes expenses for food, clothing, residence, medical and other expenses relating to normal persuit of fife and it has certainly no bearing from starvation maintenance so that the person maintained is forced to lead an indignified life. However, Court must consider that awarding such amount should not render the person liable to maintain a pauper. 16. It is admitted fact that there is no source of income of her wife / respondent no. 2, so she is unable to maintain herself. She is living separately due to continuous harassment and demand of dowry. Learned trial court after appreciating each and every fact awarded the maintenance allowance of Rs. 19,000/-to the respondent no. 2. Judgment of the learned family court is well reasoned and well discussed. There is no illegality or irregularity in the assessment of the maintenance allowance so there is no interference warranted in the order dated 14.5.2019 passed by learned family court. 17. Revision is devoid of merit and is accordingly dismissed. 18. Interim order, if any, stands vacated. 19. A copy of this order be communicated to the lower court for necessary compliance.