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2023 DIGILAW 2001 (ALL)

Jayhind Singh v. State of U. P.

2023-08-21

RAM MANOHAR NARAYAN MISHRA

body2023
ORDER : Ram Manohar Narayan Mishra, J. Heard learned counsel for the revisionist, learned counsel for the opposite party Nos.2 and 3, learned AGA for the State and perused the material placed on record. 2. Instant criminal revision has been preferred against the impugned judgment and order dated 15.12.2022, passed by Additional Sessions Judge/Special Judge (M.P./M.L.A Court), Allahabad in Session Trial No.196 of 2020 (State of U.P. vs. Saurabh Pandey and others), arising out of Case Crime No.396 of 2020, under Sections 147, 148, 149, 323, 504, 308, 452, 304 IPC, Police Station Karchhana, District Allahabad (Prayagraj), whereby the Application 75-Kha moved by the informant, who is also defacto complainant, under Section 319 Cr.P.C. has been dismissed. 3. The factual matrix of the case are that the applicant Smt.Shashikala Devi filed an application for maintenance under Section 125 Cr.P.C. against husband, who is present revisionist, before this Court with averment that her marriage was solemnized with opposite party on 09.05.2005 in accordance with Hindu rites and rituals. The parties performed their marital oblications for some time after marriage but even after expiry of four years, the applicant could not give birth of a child and due to this fact, her husband and in-laws started harassing and subjected her to matrimonial cruelty and they demanded additional dowry from the applicant. The cruelty practiced by the opposite party and his family members continued on 30.06.2009 and she was dislodged from her matrimonial home second time. After some cajoling from the side of applicant, the opposite party agreed to take her back with him and the applicant was send of to her matrimonial place on 08.08.2009 but again the harassment to the applicant continued and the opposite party and his family members used to give beating her, abused her and caused injuries to her on 07.02.2010 by assaulting her regarding which, an NCR was lodged at the instance of applicant at police station concerned under Sections 323, 504 IPC and the learned ACJM directed investigation on application of the applicant on 16.20.2010. Due to continuous harassment and torture practiced by the opposite party and his family members, the applicant was forced to leave her matrimonial home and took shelter at the place of her parents. The opposite party was not ready to even provide maintenance to her due to which she had to file present petition. 4. Due to continuous harassment and torture practiced by the opposite party and his family members, the applicant was forced to leave her matrimonial home and took shelter at the place of her parents. The opposite party was not ready to even provide maintenance to her due to which she had to file present petition. 4. Learned court below summoned the opposite party, who appeared and filed his written statement and the learned court below recorded the evidence of both sides and framed four issues in the proceedings. Learned court below gave finding that the applicant Shashikala Devi is legally wedded wife of opposite party Jayhind Singh. The opposite party observed carelessness and negligence in maintenance of the applicant and she was forced to live separately from her husband due to valid and reasonable cause. The applicant Shashikala Devi is unable to maintain her and the opposite party is having sufficient means to maintain the applicant. After giving above finding, the learned court below decided the maintenance application partially and provided maintenance to the applicant to the tune of Rs.3,000/- per month from the date of application until the applicant contracts remarriage. 5. Learned counsel for the revisionist submitted that the main grievance of the revisionist is that the maintenance has been awarded from the date of application and the applicant is saddled with heavy economic burden for providing arrears of maintenance for more than 12 years alongwith regular payment of maintenance and the applicant is not in a position to pay this heavy amount of arrears due to his meagre economic resources. He further submitted that the revisionist has been providing interim maintenance to the opposite party No.2 since 2016 to the tune of Rs.1500/- per month and there is no deliberate default on the part of the revisionist in paying interim maintenance to the opposite party No.2. The revisionist is a semi age person. He has no personal income and he is fully dependent on his parents for his material needs. The opposite party No.2 was not interested to live with the revisionist since the period of marriage itself and she used to visit her parents and live with them for most of the time after marriage. The revisionist is trying his best to keep opposite party No.2 with him but it all goes in vain. The opposite party No.2 was not interested to live with the revisionist since the period of marriage itself and she used to visit her parents and live with them for most of the time after marriage. The revisionist is trying his best to keep opposite party No.2 with him but it all goes in vain. The revisionist has deposited Rs.34,000/- towards interim maintenance to the tune of Rs.15,00/- per month. Learned court below has awarded maintenance to the tune of Rs.3,000/- per month without considering the facts and circumstances of the case since date of filing of application. The impugned judgement and order is arbitrary and against the evidence on record, which is not sustainable. Learned counsel for the revisionist next submitted that the learned court below has observed in impugned judgement that the monthly income of the opposite party does not appear to be of Rs.15,000/- per month and the quantum of a monthly income stated by the applicant in her evidence as PW1 is not true because she has not filed any documentary evidence in support of the alleged income of the private party. She has also not filed any statement of income or expenditure of the opposite party. However, it is obvious that applicant is not able to maintain herself and opposite party has sufficient means to maintain the applicant. The extract of Khatauni filed by the applicant reveals that the opposite party has acquired agricultural land in succession from his late father. 6. Learned counsel for the opposite party No.2 submitted that the revisionist has not been regular even paying the interim maintenance. He has not paid any amount towards maintenance awarded in impugned judgement. In paragraph No.14 of the counter affidavit, it is shown that the total amount of arrear of maintenance up to 17th of October, 2022 comes around Rs.4,53,000/- and after deducting an amount of Rs.80,500/- paid by the revisionist towards interim maintenance, the rest of the awarded amount is Rs.3,73,000/-. The amount awarded in impugned order is minimum amount which requires for the sustenance of the applicant. 7. Hon'ble Apex Court in Rajnesh vs. Neha 2021(2) SCC 324 held that though the wife can simultaneously claim maintenance under the different enactments. It would, however, be inequitable to direct the husband to pay maintenance awarded in each of the proceedings, independent of the relief granted in a previous proceeding. 7. Hon'ble Apex Court in Rajnesh vs. Neha 2021(2) SCC 324 held that though the wife can simultaneously claim maintenance under the different enactments. It would, however, be inequitable to direct the husband to pay maintenance awarded in each of the proceedings, independent of the relief granted in a previous proceeding. Adjustment is permissible and the adjustment can be allowed of the lower amount against the higher amount. The Court would take into consideration the maintenance already awarded in the previous proceeding, and grant an adjustment or set-off of the said amount. There is a vast variance in the practice adopted by the Family Courts in the country with respect to the date from which maintenance must be awarded. There is no provision in the Hindu Marriage Act or Domestic Violence Act with respect to the date from which an Order of maintenance may be made effective. Section 125(2) Cr.P.C. is the only statutory provision which provides that the Magistrate may award maintenance either from the date of the order, or from the date of application. It has therefore become necessary to issue directions to bring about uniformity and consistency in the Orders passed by all Courts, by directing that maintenance be awarded from the date on which the application was made before the concerned Court. 8. In the present case, the learned court below has directed that the amount paid by the opposite party towards interim maintenance will be liable to be set off from the arrears of maintenance awarded by the present order in the light of directions of Hon'ble Apex Court. There is no illegality or irregularity committed by the court below while awarding maintenance from the date of application and the quantum of maintenance is around 20 per cent of the income estimated by the learned court below, which is based on facts and needs no interference in present criminal revision and therefore, I find no infirmity, illegality or irregularity in the impugned judgement. The revision is devoid of merits and is liable to be dismissed. 9. Accordingly, present criminal revision stands dismissed. 10. The revision is devoid of merits and is liable to be dismissed. 9. Accordingly, present criminal revision stands dismissed. 10. However, keeping in view the huge amount of arrears of maintenance, the revisionist is provided an opportunity to pay the arrears of maintenance as stated in paragraph No.14 of the counter affidavit, in 5 equal monthly installments, out of which first installment will be payable from 10.09.2023 and the remaining installments will be payable accordingly, in each succeeding months. The applicant will have to pay the regular payment of maintenance to the tune of Rs.3,000/- per month, as directed in impugned judgement and order. 11. Any infraction in impugned order shall entail the issuance of coercive process against the revisionist by the court below.