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2023 DIGILAW 1616 (ALL)

Surendra Prajapati v. State of U. P.

2023-07-07

RAM MANOHAR NARAYAN MISHRA

body2023
JUDGMENT Ram Manohar Narayan Mishra, J. The present revision is directed against the judgement and order dated 16.9.2022 passed by Principal Judge, Family Court, Lalitpur in Misc. Case No. 10/2020 (Smt. Ramdevi @ Mohini v. Surendra Prajapati), under Section 125 Cr.P.C., P.S. Bar, District Lalitpur whereby revisionist has been directed to pay Rs. 4,000/- per month as maintenance to his wife-respondent no. 2 from the date of judgement. 2. Notice has been served upon the respondent no. 2 as per the report of the C.J.M., concerned, but none appeared to press this revision on behalf of the respondent no. 2. 3. Heard learned counsel for the revisionist and learned AGA for the State. 4. Brief facts of the case are that respondent no. 2 filed an application for maintenance against her husband under Section 125 Cr.P.C. with averments that her marriage with opposite party was solemnized on 19.4.2014 according to Hindu rites and rituals; her parents had given cash and gifts as per their economic status but her husband and in-laws were not satisfied with the dowry given in her marriage and started demanding of Rs. 02 lakhs as an additional dowry and on non fulfillment they began practicing physical and mental cruelty against her. Before filing of petition under section 125 Cr.P.C., she was turned out from her matrimonial home by her husband and in-laws with threatening that if she came back without dowry she will be turned out. On 1.1.2020 at 12:00 hours when the respondent no. 2- applicant was in her parental home, her husband and in-laws came to her place and stated that if she could not fulfill their demand of dowry, their marital relation would be dissolved and when she declined to fulfill their demand, they abused and gave beating to her by kicks and fits and therefore, she claimed for maintenance as the revisionist is having two acre agricultural land and he works as painter in big buildings on contract from which he earns Rs. 50,000/- per month. 5. 50,000/- per month. 5. Learned court below after considering the pleadings of the parties and evidence recorded in maintenance case, gave finding that it is admitted fact that applicant and opposite party are wife and husband; applicant is residing at her parental home for six years and in that period she never came back to her matrimonial home; divorce proceedings are underway between the parties, therefore, it is natural that probability of their re-union is bleak and thus she has been left with no other option but to live separately from her husband, therefore it was held that applicant was residing separately from opposite party due to reasonable cause, learned court below has also found that according to version of opposite party, he works as a labourer and earns Rs. 200-250/- per day and therefore he has sufficient income to maintain the applicant. After recording these findings the court below awarded Rs. 4,000/- per month as maintenance from the date of judgement. Feeling aggrieved by the said order the present revision has been filed by the revisionist-opposite party. 6. Learned counsel for the revisionist submitted that the court below has acted in illegal manner and committed irregularity while passing the impugned order; there are manifest error of law apparent on the face of record in the judgement. On the basis of material on record it is apparent that respondent no. 2 has been residing separately from the revisionist without any reasonable cause and out of free will, therefore, the revisionist is not obliged to maintain her. He next submitted that revisionist is a person of meager economic sources and he works as a daily-wage labourer and earns a little amount therefore he is not in a position to pay Rs. 4,000/- per month as maintenance to the respondent no. 2. He also maintains his brother who remained sick for long time as well as his parents by his own meager wages and as the respondent no. 2 had also filed an application under the Domestic Violence Act against the revisionist which was dismissed in default by the court concerned and in that proceedings revisionist has given undertaking before the court to keep his wife with him and court had also directed the respondent no. 2 to accompany her husband at her matrimonial home but she did not comply with the order of the court. Inasmuch as the respondent no. 2 to accompany her husband at her matrimonial home but she did not comply with the order of the court. Inasmuch as the respondent no. 2 had filed application before the family conciliation centre wherein she stated that she is willing to seek divorce from her husband and she is not willing to reside with him; the divorce petition has been filed by the respondent no. 2 and not by the revisionist himself, therefore, conduct of the respondent no. 2 also shows that she is not eligible to get any maintenance in the proceedings under section 125 Cr.P.C. 7. Learned counsel for the revisionist placed reliance on the judgement of Rajasthan High Court in Bheekha Ram v. Goma Devi and others, 1999 CriLJ 1789 wherein the Court observed in para 8 and 9, which is as under:- 8. The right to be maintained by the husband stems from performance of marital duty. It is only when the Court inter alia comes to the finding that the wife claiming maintenance had been prevented from performing the marital duty by the husband that she could be awarded maintenance. When it is found that the wife declines to live with husband without any just cause and there is no evidence of ill-treatment by the husband, wife is not entitled to maintenance. In the instant case, it is noticed that the husband even sent a registered notice to the wife asking her to stay with him but she refused to accept the notice. 9. As already pointed out, in the revisional jurisdiction, the Court cannot be justified in reappraising the evidence and come to its own conclusion when it is not shown that the Magistrate had omitted to consider some vital evidence or had misread the evidence. The learned Addl. Sessions Judge has, obviously exceeded his jurisdiction in reversing the finding of fact recorded by the Magistrate, without cogent reasons. Goma Devi has not been able to establish that she had been neglected by her husband. As a matter of fact she is living with her parents of her own accord. She is, therefore, not entitled for maintenance allowance for herself. However, she is entitled to maintenance allowance for her two kids who are living with her. Bheekha Ram, has not come out with the case that he was giving maintenance allowance to Goma Devi for the children. She is, therefore, not entitled for maintenance allowance for herself. However, she is entitled to maintenance allowance for her two kids who are living with her. Bheekha Ram, has not come out with the case that he was giving maintenance allowance to Goma Devi for the children. It is no fault of the children when they are living with their mother. The father is bound to provide maintenance to them. 8. Learned counsel for the revisionist cited the judgement of Hon'ble Apex court with regard to quantum of amount of maintenance in Kalyan Dev Chawdhury v. Rita Dey Chowdhury Nee Nandy in Civil Appeal No. 5369 of 2017 filed against the judgement of High Court of Culcutta on application under section 25(2) of Hindu Marriage Act whereby amount of maintenance was reduced to Rs. 23,000/- from Rs. 20,000/-. The Hon'ble Apex Court has placed reliance on Dr. Kulbhushan Kumar v. Raj Kumari and another (1970) 3 SCC 129 wherein it is held 25% of the husband's net salary would be just and proper to be awarded as maintenance to the respondent wife. The amount of permanent alimony awarded to the wife must be befitting the status of the parties and the capacity of the spouse to pay maintenance. Maintenance is always dependent on the factual situation of the case and the court would be justified in moulding the claim for maintenance passed on various factors. Cr.P.C. 9. Per contra, learned AGA submitted that respondent no. 2 has stated in petition under section 125 Cr.P.C. that she was subjected to cruelty by her husband and in-laws due to non fulfillment of additional demand of dowry and she was ultimately turned out from her matrimonial home, therefore, she has valid reason to leave her matrimonial home and lives separately from her husband. Learned AGA also submitted that statement allegedly given by the respondent no. 2 pertains to the year 2017 before the family conciliation centre whereas in divorce petition, petitioner has stated in para-2 that she was turned out from her matrimonial home in January, 2019 after keeping her stridhan. She had declined the alleged statement given before the family conciliation centre in her evidence and said statement is not duly proved. 10. In present case, amount of maintenance awarded by learned court below is Rs. 4,000/- per month for maintenance to respondent no. 2, who is wife of revisionist. She had declined the alleged statement given before the family conciliation centre in her evidence and said statement is not duly proved. 10. In present case, amount of maintenance awarded by learned court below is Rs. 4,000/- per month for maintenance to respondent no. 2, who is wife of revisionist. The said amount is not exorbitant or in any manner unreasonable; there is no material or evidence on record to the effect that respondent no. 2 is having independent source of earning; finding of the court below that applicant, who is respondent no. 2 in present criminal revision, is residing separately with her husband due to reasonable cause; this finding is based on material on record and finding of fact which does not call for any interference in present revision; this is admitted fact that a divorce petition has been filed by the respondent no. 2 against the revisionist even the fact that divorce petition is filed by the respondent no. 2- applicant before the court below, cannot be treated as presumption of alleged fact that she was residing separately from her husband without any sufficient cause. 11. Thus, I find no substantial legal or factual error in the impugned order passed by the learned family court in present case. However, keeping in view the fact that income of the revisionist has not been specifically proved on record and this fact has been brought on record that he works as a white washer and painter of houses and he is supposed to maintain himself and he has to take care of family members; there is need that the amount of maintenance liable to be reduced to some extent as is stated that he earns around Rs. 200/- to 250/- per day as a daily-wage labour and reliance is placed thereby court below. 12. Consequently, the amount of maintenance awarded in the impugned judgement and order of family court is modified from Rs. 4,000/- to Rs. 3,000/- per month subject to same terms and conditions as specified in the impugned order. Any amount towards maintenance already paid, shall be adjusted in accordance with modified amount of maintenance in present judgement. However, it is open to respondent no. 2 to file an application for alteration of amount of maintenance awarded by the court below, which is modified by this order. Any amount towards maintenance already paid, shall be adjusted in accordance with modified amount of maintenance in present judgement. However, it is open to respondent no. 2 to file an application for alteration of amount of maintenance awarded by the court below, which is modified by this order. If she finds any material in support of the fact that he earns more monthly amount through his private work that what is stated by the revisionist before court below in his evidence. 13. The present revision stands disposed of with above observations.