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Allahabad High Court · body

2021 DIGILAW 1548 (ALL)

Om Prakash v. State of U. P.

2021-12-14

SANGEETA CHANDRA

body2021
JUDGMENT : SANGEETA CHANDRA, J. 1. This Criminal Revision has been filed under Section 19(4) of the Family Courts Act, 1984 against the impugned Orders dated 07.10.2021 and 26.10.2021 passed by the Additional Principal Judge, Court No. 10, Family Court, Lucknow in Criminal Misc. Case No. 1024 of 2006, Smt. Rajrani and Others vs. Om Prakash, on an application filed under Section 125 Cr.P.C. relating to Police Station Malihabad, District Lucknow. 2. At the outset, learned counsel for the revisionist has stated that he had earlier filed Revision No. 838 of 2021, which was dismissed as withdrawn with liberty to file a fresh revision by this Court vide its order dated 07.12.2021. The application under Section 125 Cr.P.C. was filed by the opposite party no. 2 alongwith her two children, who were minors at that time and have now become major and arrayed as opposite party no. 3 and 4. Such application was filed on 27.11.2006 stating, therein, that she was constantly being harassed with the demand of more dowry ever since the time of her marriage she was also thrown out from the matrimonial home. Later on a compromise occurred between the parties due to the intervention of family and friends. She came back to the matrimonial house where a son was born to her, later on a daughter was also born to her and at the time of making such application they were aged four years and two and a half years, respectively. After the daughter was born, the relationship between the applicant and the revisionist soured to such extent that she had to leave her matrimonial home again and is now residing in her parental house. Since September 2006 till the date of filing of application, no maintenance was given to her by her husband. 3. The applicant was uneducated and unskilled woman and it has been difficult for her to raise her two children, therefore, the maintenance application was filed. On the other hand, the revisionist owned five bighas of land, where he grew vegetables and earned round about Rs. 15,000/- per month, also, he was doing wholesale business in Kanpur from which he earned around Rs. 15,000/- to Rs. 20,000/- per month. The income of the revisionist being more than 30,000/- per month, a prayer was made that the applicant and her two children be granted Rs. 20,000/- per month as maintenance. 4. 15,000/- per month, also, he was doing wholesale business in Kanpur from which he earned around Rs. 15,000/- to Rs. 20,000/- per month. The income of the revisionist being more than 30,000/- per month, a prayer was made that the applicant and her two children be granted Rs. 20,000/- per month as maintenance. 4. The revisionist after issuance of notice filed written statement objection. Thereafter documentary and oral evidence were taken. Thereafter, learned trial court passed the order impugned by which the application of the revisionist paper no. C-45 for forensic examination of the handwriting and photographs in the documentary evidence that were produced by the revisionist was prayed to be got done. The revisionist had argued that in the cross-examination of the applicant on 17.10.2019, she had admitted that the two children who were shown in the photograph were not that of the revisionist, and the handwriting and signatures on paper no. C-32/5 and C-32/6 were not hers. 5. Learned trial court placed reliance upon Section 14 of the Family Courts Act with regard to the power of the Family Court to take documentary evidence into account for a proper adjudication of the case. Even such documentary evidence could be looked into which under the Evidence Act, 1972 was otherwise not admissible. Learned trial court observed that the opposite party who was merely delaying the decision on the application under Section 125 of the Cr.P.C. by moving such an application for getting forensic examination done. In the written statement that were filed by him and the objections paper no. A- 3, he had not taken any such objections that were now being raised at the time of arguments that the applicant had married some other person and that the children were not his. The application no. C-45 was rejected and a direction was issued that the matter be listed on 16.10.2021 as the High Court had already passed an order saying that the application of maintenance be decided within three months. 6. The revisionist, thereafter, filed another application C-53, supported by an affidavit praying for review and modification of the order dated 07.10.2021. It was stated that paper no. 6. The revisionist, thereafter, filed another application C-53, supported by an affidavit praying for review and modification of the order dated 07.10.2021. It was stated that paper no. C32/5 and C-32/6 have been referred to in the order dated 07.10.2021 to be photocopies of original document, however, they were actually the original documents which had been submitted in a sealed cover and were attached alongwith the paper book in its record. This showed that the learned trial court had not even opened the sealed cover and taken a look at paper no. C-32/5 and C-32/6. It was on these papers that his whole defence regarding application for maintenance filed by the applicant were based. Such documents would show that the applicant was living outside the matrimonial home alongwith her children, out of her own sweet will. 7. It was also argued by the learned counsel for the revisionist that a reference had been made during the course of the argument to the judgment rendered by the Hon'ble Supreme Court in Civil No. 2243 of 2009, Lakshmi and Another vs. Chinnammal @ Rayyammal and Others and another judgment rendered in Sanjeev Kapoor vs. Chandana Kapoor and Others in Criminal Appeal No. 286 of 2020, but the learned trial court failed to appreciate the law settled by the Hon'ble Supreme Court correctly and rejected the application by saying that under the Criminal Procedure Code an order cannot be modified or reviewed by any trial court. 8. It has been submitted by the learned counsel for the revisionist that the perusal of the judgments rendered by the Hon'ble Supreme Court in the case of Sanjeev Kapoor vs. Chandana Kapoor and Others, (2020) 13 SCC 172 in Criminal Appeal No. 286 of 2020 decided on 19.02.2020, which was cited before the trial court would show that the Court had considered the arguments regarding Section 362 Cr.P.C. and the bar mentioned therein for review/modification of order passed by the Criminal Court. The Hon'ble Supreme Court had observed that orders passed under Section 125 Cr.P.C. can be modified on subsequent events taking place for example, when an application for enhancement of maintenance is filed by the applicant. The Hon'ble Supreme Court had observed that orders passed under Section 125 Cr.P.C. can be modified on subsequent events taking place for example, when an application for enhancement of maintenance is filed by the applicant. The Hon'ble Supreme Court had observed in paragraph 21 that the legislature was aware that there are and may be the situations where altering or reviewing of criminal court judgment is contemplated in the Code itself or any other law for the time being in force. For example Under Section 145 Cr.P.C. the rigours of Section 362 Cr.P.C. were relaxed. Similarly, Section 125 Cr.P.C. alongwith its Sub-Sections 125 as well as Section 127 of the Cr.P.C. were considered by the Hon'ble Supreme Court and it also considered the trial court's jurisdiction to alter the maintenance on proof of change in circumstances of any person receiving such maintenance under Section 125 Cr.P.C. or where it appeared to the Magistrate that in consequence of any decision of the competent civil court any order made under Section 125 Cr.P.C. should be cancelled or varied, or where any order has been made under Section 125 Cr.P.C. in favour of a woman who has been divorced or has obtained a divorce from her husband and that after divorce she has re-married or that she has received permanent alimony. Several such instances were referred to by the Hon'ble Supreme Court where the order passed under Section 125 Cr.P.C. was capable of alteration in terms of the language of different Sections of the Cr.P.C. itself. 9. In paragraph 27 of the report, it referred to Section 362 of the Cr.P.C. and then observed that such embargo is expressly relaxed in a proceeding under Section 125 Cr.P.C. and therefore, the Family Court was entitled to cancel its earlier order and pass a different order in the facts and circumstances of the case before it. 10. This Court having considered the judgment rendered in Sanjeev Kapoor vs. Chandana Kapoor and Others and also the orders dated 26.10.2021 and 07.10.2021 finds that the learned trial court has rejected the modification application paper no. C53 as also the application paper no. C-45 of the revisionist without looking into the law settled by the Hon'ble Supreme Court in the case of Sanjeev Kapoor (Supra) although the same was cited before it. 11. C53 as also the application paper no. C-45 of the revisionist without looking into the law settled by the Hon'ble Supreme Court in the case of Sanjeev Kapoor (Supra) although the same was cited before it. 11. Accordingly, this revision is disposed of and the orders dated 07.10.2021 and 26.10.2021 are set aside with a direction to the learned trial court to consider both the applications afresh in the light of the judgments rendered by the Hon'ble Supreme Court in the case of Sanjeev Kapoor (Supra) and pass appropriate orders thereafter within a period of six weeks from the date of the copy of this order be produced before it.