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2023 DIGILAW 263 (UTT)

Anil Kumar Arya v. Hemlata

2023-04-06

RAVINDRA MAITHANI

body2023
JUDGMENT Ravindra Maithani, J. The challenge in this revision is made to the judgment and order dated 10.11.2022, passed in Miscellaneous Criminal Case No.26 of 2021, Smt. Hemlata and another vs. Anil Kumar Arya, by the court of Judge, Family Court, Tehri Garhwal, New Tehri, District Tehri Garhwal (for short, “the case”). By which, the revisionist has been directed to pay Rs.22,000/- (Rs.13,000/- to the respondent no.1, his wife and Rs.9,000/- to the respondent no.2, his son) per month as maintenance in the proceedings under Section 125 of the Code of Criminal Procedure, 1973 (for short, “the Code”). 2. Heard learned counsel for the parties and perused the record. 3. Facts necessary to appreciate the controversy briefly stated are as follows. The respondent no.1 filed an application under Section 125 of the Code, seeking maintenance from the revisionist, which is the basis of the case. It has been the case of the respondent no.1 that she and the revisionist were married on 17.04.2017. But, after marriage, her in-laws were not happy with her and, therefore, she was harassed and tortured. She was blessed with a child, but the things did not change and finally, in order to save her life, she had left her matrimonial house on 01.03.2020. Her in-laws did lodge a missing report of her at a police station. Thereafter, the revisionist did not take care of her. She is not able to maintain herself whereas, the revisionist is a Lecturer in a Government Inter College and earns Rs.90,000/- per month. 4. The application was objected to by the revisionist. According to him, the respondent no.1 was never harassed and tortured at her in-laws’ house. It is the case of the revisionist that after the birth of his son on 19.09.2018, the behaviour of respondent no.1 suddenly changed; she became cruel and aggressive; she was not caring for anyone; she would leave her matrimonial house for longer durations so as to stay at her parents’ house; on 01.03.2020, the respondent no.1 had left her matrimonial house without informing anyone, therefore, a missing report was lodged. 5. Parties adduced the evidence in the case. On behalf of the respondent no.1, two witnesses, she herself and her father Prem Lal were examined. On behalf of the revisionist, he himself was examined. 6. 5. Parties adduced the evidence in the case. On behalf of the respondent no.1, two witnesses, she herself and her father Prem Lal were examined. On behalf of the revisionist, he himself was examined. 6. Learned counsel for the revisionist would submit that the revisionist is already paying Rs.8,000/- (Rs.5,000/-, to the respondent no.1, his wife and Rs.3,000/-, to respondent no.2, his son) per month in a proceeding under The Protection of Women from Domestic Violence Act, 2005 (for short, “the Act”) and in addition to it, Rs.22,000/- has been awarded to the respondents, which is not as per the law in view of the judgment in the case of Rajnesh Vs. Neha, (2021) 2 SCC 324 . Learned counsel for the revisionist would submit that the revisionist is already paying maintenance under the provisions of the Act, which could have been adjusted or set off in any order of maintenance that was to be passed in the proceedings, but, it was not done. Reference has been made to para 128.1 of the judgment in the case of Rajnesh (supra) and Sudeep Chaudhary vs. Radha Chaudhary, (1997) 11 SCC 286 . In the case of Rajnesh (supra), the Hon’ble Supreme Court observed as hereunder:- “128.1. (i) Where successive claims for maintenance are made by a party under different statutes, the court would consider an adjustment or set-off, of the amount awarded in the previous proceeding(s), while determining whether any further amount is to be awarded in the subsequent proceeding.” 7. In the case of Sudeep Chaudhary (supra), the wife had already been receiving maintenance under Section 125 of the Code. Subsequently, in another proceedings under Hindu Marriage Act, 1955, she was awarded maintenance. Under that factual situation, the Hon’ble Supreme Court fixed a sum that may be paid by the husband to the wife under both the provisions. 8. Learned counsel for the revisionist would also submit that the case of the respondent no.1 is not believable, on the one hand she has stated that she had left her matrimonial house on 01.03.2020, whereas she has also stated that she was beaten up at her in-laws’ house on 4th–5th May, 2020. It is submitted that this is a very important piece of evidence, which has been ignored by the court below while passing the impugned order. 9. It is a revision. It is submitted that this is a very important piece of evidence, which has been ignored by the court below while passing the impugned order. 9. It is a revision. The scope is much restricted to the extent of examining the correctness, legality and propriety of the impugned judgment and order. Appreciation of evidence is generally not made in the revision, unless some material evidence is ignored or irrelevant material is considered or a finding is based on no evidence or the finding is perverse i.e. against the weight of evidence. 10. The revision is yet to be admitted. At the stage of hearing, the lower court record is already before this Court. The respondent no.1 in her examination has supported the case. She has been cross-examined quite in detail. She has categorically stated that she is ready and willing to join the company of her husband, who happens to be the revisionist. She was, in fact, asked about it. Although, the respondent no.1, in her evidence has stated that she had left her matrimonial house on 01.03.2020 and she has also stated that she was beaten up on 4th–5th May, 2020. But, it does not make her entire statement unbelievable. The statements are to be read in totality. She was asked about her education, she has stated that she is a Graduate; she has not done any computer course. In para 22, PW1 Hemlata, the respondent no.1 has categorically stated that she is still willing to stay with her husband. PW2 is the father of respondent no.1. He has corroborated the statements of respondent no.1. The revisionist has appeared as a witness. He has reiterated his version in his affidavit. In his crossexamination, he was categorically put a question, as to whether, he is ready and willing to keep his wife with him? In para 43, he has stated that he is ready and willing to keep his wife, the respondent no.1 in his house at Ranipokhri. In paras 65 and 66, when questioned, the revisionist has answered that, in fact, his wife has stated in a counselling sessions that she is willing to stay with the revisionist, but the revisionist himself had denied to keep her with him at the place of his posting. Though, he had then stated that the circumstances were not convenient for his family to stay with him at the place of posting. 11. Though, he had then stated that the circumstances were not convenient for his family to stay with him at the place of posting. 11. The cause for staying separate has been deeply analysed in the impugned judgment and order. The revisionist himself has denied to keep his wife with him at the place of his posting. He wanted to keep his wife with his parents in his house at some other place. Therefore, ithas rightly been concluded that the respondent no.1 had sufficient cause to stay away from the revisionist. 12. It is true that according to the impugned order, the respondent no.1 and the respondent no.2 are already receiving Rs.8,000/- per month under the proceedings of the Act and Rs.22,000/- were granted in the case in addition to those proceedings. What has been argued is that award of maintenance cannot be in addition to the maintenance which the wife is already receiving. 13. In the case of Rajnesh (supra), the Hon’ble Supreme Court in para 128.1 had observed about it. At the cost of repetition, this Court reiterates as to what the Hon’ble Supreme Court had observed in that situation. The Hon’ble Supreme Court observed, “Where successive claims for maintenance are made by a party under different statutes, the court would consider an adjustment or set-off, of the amount awarded in the previous proceeding(s), while determining whether any further amount is to be awarded in the subsequent proceeding..” 14. This aspect has already been discussed by this Court in Criminal Revision No.396 of 2017, Gajendra Singh vs. Reena Balmiki and another. This Court has observed as hereunder:- “13. In fact, it is using phrases in different manner. In the case of Rajnesh (supra), the Hon’ble Supreme Court has categorically held that any amount of maintenance that had already been received by the wife has to be adjusted or set-off. 14. That is what has been done in the instant case. The revisionist is a teacher. The applicant was awarded Rs. 5,000/- in the year 2010, in a proceeding under Section 125 of the Code. There could have been a different mode of writing the order. The court could have passed an order that the revisionist would pay Rs. 25,000/- per month as interim maintenance to the applicant, with the further direction that the amount of Rs. 5,000/- in the year 2010, in a proceeding under Section 125 of the Code. There could have been a different mode of writing the order. The court could have passed an order that the revisionist would pay Rs. 25,000/- per month as interim maintenance to the applicant, with the further direction that the amount of Rs. 5,000/-, which the applicant had already been receiving shall be adjusted in this amount. Resultantly, the applicant would have received Rs. 20,000/-. Instead of writing so, what the court below has written is that in addition to Rs. 5,000/-, which the applicant had already been receiving under Section 125 of the Code, she would receive Rs. 15,000/- more. 15. It is not the case that the court below has not taken into consideration the amount of maintenance, which the wife had been receiving under Section 125 of the Code. Merely because the word “adjustment” as such has not been written, it cannot be said that the order impugned is against law. In fact, the impugned orders are incompliance to the direction of the Hon’ble Supreme Court in the case of Rajnesh (supra) and in accordance with the provision of Section 20 of the Act. There is no illegality, error or impropriety in the impugned orders. Accordingly, the revision deserves to be dismissed.” 15. Instant case is similar. It is not the case that in the impugned order the award of maintenance, which the respondents were receiving under the provisions of the Act has not been taken into consideration. Instead of writing the order in a way that the word “an adjustment or set-off” could be used, the Court worded an order that the subsequent amount of maintenance is given in addition. 16. It is not the case that the court below has not taken into consideration the amount of maintenance, which the wife had been receiving under the Act. Merely because the word “adjustment” as such has not been written, it cannot be said that the impugned order is against the law. In fact, the impugned order is in compliance with the directions of the Hon’ble Supreme Court in the case of Rajnesh (supra) and in accordance with the provisions of Section 20 of the Act. There is no illegality, error or impropriety in the impugned order. Accordingly, the revision deserves to be dismissed at the stage of admission itself. 17. In fact, the impugned order is in compliance with the directions of the Hon’ble Supreme Court in the case of Rajnesh (supra) and in accordance with the provisions of Section 20 of the Act. There is no illegality, error or impropriety in the impugned order. Accordingly, the revision deserves to be dismissed at the stage of admission itself. 17. The revision is dismissed in limine.