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2021 DIGILAW 319 (ALL)

Akhlesh Kumar Vaidhya v. State Of U. P.

2021-02-26

SURESH KUMAR GUPTA

body2021
JUDGMENT : Suresh Kumar Gupta, J. 1. This criminal revision has been filed by the revisionist against the order dated 3.7.2018 passed by learned Principal Judge, Family Court, Jhansi in Case No. 338 of 2017 (Smt. Neelu and Others Vs. Akhlesh) under section 125 Cr.P.C., Police Station Babina, District Jhansi, whereby application for interim maintenance in aforesaid case has been allowed and awarded Rs. 15,000/-(Rs. 10,000/-for wife Smt. Neelu / opposite party no. 2 and Rs. 5000/-for her son Dhairya / opposite party no. 3) per month as maintenance to opposite party no. 2 and 3. 2. The facts of this revision emerges as such that opposite party no. 2 / Smt. Neelu has filed an application before the Principal Judge, Family Court, Jhansi on 1.7.2017 under section 125 Cr.P.C. with submission that revisionist / Akhlesh Kumar Vaidhya and opposite party no. 2 have got marriage on 4.7.2013 according to Hindu rituals and rites. At the time of said marriage, on demand of family members of the revisionist, father of opposite party no. 2 had given Rs. 10,00,000/-(Rs. Ten Lacs), gold, silver and other household articles. During substantiate of this wedlock, one male child namely, Dhairya, born in October, 2014. After some time the revisionist and his family members continuously harassing opposite party no. 2 on account of additional demand of dowry. Being aggrieved with torture of the revisionist and his family members, opposite party no. 2 has left her matrimonial house and since then she is living at her parental home. Opposite party no. 2 has lodged first information report under sections 498-A, 323, 504, 506 and 3 / 4 of Dowry Prohibition Act on 13.5.2017 at Police Station Babina, District Jhansi against the revisionist and his family members. Opposite party no. 2 has filed an application before the family court, Jhansi on 1.7.2017 under section 125 Cr.P.C. with allegation that she is a household lady and unable to maintain herself and her son so she claims for maintenance of Rs. 1,00,000/-for herself and Rs. 50,000/-for her son / opposite party no. 3. During pendecy of this application before the family court an application for interim maintenance was also filed by the opposite party no. 2 on 7.4.2018 before the family court. 1,00,000/-for herself and Rs. 50,000/-for her son / opposite party no. 3. During pendecy of this application before the family court an application for interim maintenance was also filed by the opposite party no. 2 on 7.4.2018 before the family court. Revisionist has filed an objection against the interim maintenance in which he has stated that he is now unemployed and out of job and anyhow he is surviving his life. After hearing both the party, by means of an order dated 3.7.2018, learned Family Court, Jhansi awarded interim maintenance to opposite party no. 2 and 3 as aforesaid and being aggrieved by order of the family court, this revision has been filed by the revisionist. 3. I have heard Sri Devi Prasad Tripathi, learned counsel for the revisionist and Sri Babul Kumar, learned counsel for opposite party no. 2 as well as the learned A.G.A. 4. Learned counsel for the revisionist submits that learned trial court without considering the ground taken by the revisionist in his objection and also without determining the income of the revisionist and without assigning any reason, passed the interim maintenance order dated 3.7.2018 by which Rs. 15,000/-per month (Rs. 10,000/-for opposite party no. 2 and Rs. 5000/-for opposite party no. 3) shall be given to the opposite party no. 2 by the revisionist. Learned counsel for the revisionist further submits that marriage of the opposite party no. 2 / Smt. Neelu was solemnized with the revisionist according to Hindu rituals and rites in very simple manner without any demand of dowry. It is further submits that opposite party no. 2 is a women of rude nature and she always quarreled with revisionist in Abu Dhabi (U.A.E.) and due to her violent behavior, revisionist has filed a divorce petition under section 13 of Hindu Marriage Act on 16.3.2017 and being aggrieved with this petition, opposite party no. 2 has lodged an F.I.R. against the entire family member of the revisionist including revisionist on 13.5.2017 under section 498-A, 323, 504, 506 I.P.C. and 3 /4 of Dowry Prohibition Act. Learned counsel further submits that revisionist is presently unemployed and have no source of income while opposite party no. 2 is earning Rs. 25,000/-per month from tuition so she is fully able to maintain herself and her son. Hence, she required no maintenance. Learned counsel further submits that revisionist is presently unemployed and have no source of income while opposite party no. 2 is earning Rs. 25,000/-per month from tuition so she is fully able to maintain herself and her son. Hence, she required no maintenance. Learned family court without considering the circumstances of this case wrongly allowed the application of opposite party no. 2 and award the interim maintenance in her favour. 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 too excessive. 5. Learned counsel for the respondent no. 2 and learned A.G.A. have vehementaly opposed the prayer of the revisionist by submitting that at the present time revisionist is still doing his job in Abu Dhabi (U.A.E.) but opposite party no. 2 has no source of income and she is totally depend upon her parents. Submission of the revisionist that opposite party no. 2 is earning Rs. 25,000/-per month from tuition is hypothetical and it is only creation of mind of the revisionist. It is further contended that opposite party no. 2 have no source of income except the maintenance awarded by the court below but revisionist has not made any single penny to the opposite party no. 2 and 3 till date. Learned Family Court, Jhansi has passed the legal order after considering entire facts and circumstances as well as after perusing all the records. Hence, submission of learned counsel for the revisionist is devoid of merits, so revision preferred by the revisionist is liable to be quashed. 6. I have considered the rival submissions made by the learned counsel for the parties and the written submissions filed on behalf of the revisionist. 7. 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. 7. 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. 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. 8. 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. 9. 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. 10.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. 10.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". 11. 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". 12. 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. 13. Maintenance under Section 125 includes expenses for food, clothing, residence, medical and other expenses relating to normal persuit of life 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. 14. 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 at her parental house due to continuous harassment and demand of dowry by the revisionist and his family members. Learned trial court after appreciating each and every fact awarded the maintenance allowance of Rs. 15,000/-(Rs. 10,000/-to opposite party no. 2 and Rs. 5000/-to opposite party no. 3) in favour of opposite party no. 2. Judgment of the learned family court is well reasoned and well discussed. Learned trial court after appreciating each and every fact awarded the maintenance allowance of Rs. 15,000/-(Rs. 10,000/-to opposite party no. 2 and Rs. 5000/-to opposite party no. 3) in favour of opposite party 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 3.7.2018 passed by learned family court. 15. Revision is devoid of merit and is accordingly dismissed with no cost. 16. Interim order, if any, stands vacated. 17. A copy of this order be communicated to the lower court for necessary compliance.