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2023 DIGILAW 353 (ALL)

Pradeep Kushwaha v. State Of U. P.

2023-02-03

RAM MANOHAR NARAYAN MISHRA

body2023
JUDGMENT : 1. Heard learned counsel for the revisionist, learned AGA for the State and perused the material placed on record. 2. Instant criminal revision has been preferred against the impugned judgment order dated 21.1.2015, passed by Principal Judge, Family Court, Gorakhpur, in Misc. Case No.526 of 2011 (Vinita Maurya vs. Pradeep) under Section 125 Cr.P.C., Police Station Shahpur, District Gorakhpur whereby the opposite party Nos.2 Vinita Maurya and her two minor daughters were awarded maintenance to the tune of Rs.7000/- and 4000/- per month respectively, which is payable on 10th of each month from the date of order. 3. Feeling aggrieved by the impugned order, the revisionist, who was opposite party in said maintenance case against whom the maintenance was awarded filed present criminal revision on 13.2.2015, wherein an interim order was issued by this Court that "subject to the condition that revisionist deposits entire arrears of maintenance as awarded by the court below to be calculated @ Rs. 8000/- per month which may be due till today within a period of one month from today and continues to deposit the current monthly maintenance amount @ Rs. 8000/- by 10th of each month, no coercive action shall be taken against him during the pendency of the said revision. The said amount shall be paid to O.P. Nos. 2 to 4 after due verification by the trial court. It is made clear that in default of making payment, as directed above, the present interim order shall stand automatically vacated." 4. The factual matrix of the case relevant for present criminal revision are that the applicant No.1 (opposite party No.1 herein) had filed a maintenance case under Section 125 Cr.P.C. on behalf of her and her two minor daughters namely, Vanshika and Niharika against her husband, who is revisionist herein with averment that her marriage with opposite party was solemnized on 5.2.1998 according to the Hindu rites and rituals, in which her parents had given gifts and dowry as per their financial status. She was sent off to her matrimonial home after marriage and out of her conjugation with opposite party, two daughters were born. Her husband was working abroad at that time and used to come back home once in a year. In absence of husband of the applicant, her family members used to harass and torture her due to non-fulfilment of demand of additional dowry. Her husband was working abroad at that time and used to come back home once in a year. In absence of husband of the applicant, her family members used to harass and torture her due to non-fulfilment of demand of additional dowry. The opposite party No.1 is an agriculturist and earns Rs.1 lac from his job abroad. The behaviour of opposite party No.1 also worsened towards the applicant during passage of time and he used to beat and torture her and subjected her to physical and mental cruelty for last six years and ultimately she was driven out of her matrimonial home in the year 2011. Her husband is Post Graduate and did diploma in Air Conditioning from Chandigarh. Applicant is also Graduate. She worked as an Agent in LIC in the year 2011 for some time but thereafter her agency terminated her. The amount earned by her in Agency of LIC was meagre and was not sufficient to cater her needs. The opposite party appeared and filed written statement wherein he stated that the applicant is falsely levelling charges against him, which are unfounded. The applicant misled by her parents and she was herself coercing him physically and mentally. In fact the applicant No.1 and her mother intend that parents of the opposite party leave his home in the city and shift to village, so that the applicant alongwith her mother rule her matrimonial home. The opposite party resides in his own home. In course of hearing, the statement of applicant No.1 was recorded as AW-1 and that of opposite party (present revisionist) as OPW-1, wherein, applicant supported her pleadings and she stated that her husband was working in Portugal and his annual income is Rs.5 lacs. In cross-examination, she has stated that she had never studied or taught in R.P.M., Gorakhpur. Her husband did not sent any money to her after going abroad. Her father-in-law suffered brain haemorrhage and presently she is residing in her matrimonial home. A land was purchased in Gorakhpur prior to her marriage. The house in which she is residing was constructed after her marriage. She is residing in that house alongwith her husband and parents-in-law. The expenses of the applicant and her children is not meeted out by income of her husband. She is taking loans from her maternal uncle Indradeo Prashad Kushwaha since 2012. The house in which she is residing was constructed after her marriage. She is residing in that house alongwith her husband and parents-in-law. The expenses of the applicant and her children is not meeted out by income of her husband. She is taking loans from her maternal uncle Indradeo Prashad Kushwaha since 2012. The OPW-1 stated in his evidence that he is working as a labourer in Portugal. He has filed an Encashed Certificate on 25.11.2008 as paper No.16-Kha. He had taken an insurance policy from HDFC Bank in the name of his father, which annual premium is 99999. However, that policy is now closed, as its premium was paid only for three years. He has not contracted any marriage in Portugal. When he was living in Portugal, his wife changed school of his children. Her wife is not wiling to reside with his parents. His father has excluded him from his property. He is now residing with his father in his house. He also resides at same village for some time. He is not aware of the fee structure of his daughters. 5. Considering the evidence adduced during hear and appreciating the evidence in the light of pleadings of the parties, the learned Principal Judge, Family Court, Gorakhpur allowed the maintenance petition of the applicants for Rs.15,000/-, which was disbursed to the tune of Rs.7,000/-, Rs.4,000/- and Rs.4,000/- amongst the applicant No.1, 2 and 3, respectively as monthly maintenance awardable to them by opposite party No.1, who is present revisionist before this Court vide impugned order dated 21.1.2015. 6. Feeling aggrieved by the impugned order, the revisionist has taken stand in present revision that he was working as a labourer in Portugal on contract basis and when he had knowledge about the fact that his family members were being harassed by his wife, he came back to his home breaking his job agreement abroad and now he is jobless and lives in his parental home doing agricultural working. He is not in a position to pay Rs.15,000/- per month as monthly maintenance to his wife and children. 7. Learned counsel for the revisionist submitted that the revisionist is presently jobless. He earns his livelihood by driving auto and doing some odd jobs. His passport has been surrendered by him in the Court with regard to criminal case. He is not in a position to pay Rs.15,000/- per month as monthly maintenance to his wife and children. 7. Learned counsel for the revisionist submitted that the revisionist is presently jobless. He earns his livelihood by driving auto and doing some odd jobs. His passport has been surrendered by him in the Court with regard to criminal case. Court below vide order dated 2.11.2021, after passing of maintenance order, issued a realization warrant of Rs.553,000/- for realization of outstanding maintenance amount and on 30.6.2022, on an application of the applicant (18-Ka) realization warrant to the tune of Rs.6,30,000/- was issued against the revisionist, a copy thereof is filed with the rejoinder affidavit. In compliance of the interim order of this Court, the revisionist has deposited entire amount of arrear at the rate of Rs.8,000/- per month and has further deposited Rs.8,000/- since 27.4.2015. He had also filed a divorce petition under Section 13 of Hindu Marriage Act, against which first appeal is pending before this Court. Opposite party No.3 Niharika, the daughter of revisionist and opposite party No.1 had attained age of majority and now she is 21 years. She is not eligible for maintenance and for that reason, applicant had filed copy of the application and copy of execution petition filed by the applicant No.1 Smt. Vineeta Maurya as Annexure No.5 to the affidavit, which shows age of Vanshika as around 21 years and of Niharika as 15 years. Opposite party No.2(Vinita Maurya) also works on the post of Block Community Manager at CSC, Kushinagar and receives a salary of Rs.40,000/- per month. The revisionist has filed a copy of contract employee of CSC, Hata, Kushinagar in rejoinder affidavit, in which name of opposite party No.2 Vinita Maurya is mentioned as contract employee on the post of B.C.P.M. 8. Per contra, learned counsel appearing on behalf of the opposite party Nos.2 to 4 submitted that both the daughters of opposite party No.1 are still dependent on her and therefore, they are in need of maintenance from the revisionist. The opposite party No.2 got a job on BCPM at CSC, Hata after passing of impugned order by court below and said job terminated in August, 2022. The revisionist does not drive auto but he plies auto rickshaws. The opposite party No.2 got a job on BCPM at CSC, Hata after passing of impugned order by court below and said job terminated in August, 2022. The revisionist does not drive auto but he plies auto rickshaws. There is no infirmity, irregularity or illegality in impugned order passed by court below and same is liable to be affirmed in present revision. The court below has not accepted the plea of disinheritance taken by the revisionist from his father. The opposite party No.2 herself bears tuition fee of her children. 9. Having regard the plea of revisionist that due to loss of job in Portugal, in lieu of want of regular employment, the revisionist is not in a position to provide maintenance ordered by the learned court below. The law is well settled in recent judgment of Apex Court dated 28.9.2022 in the case of Anju Garg and Another vs. Deepak Kumar Garg, Criminal Appeal No.1693 of 2022 (arising out of SLP(Crl.) No.10353 of 2018), whereby the high Court dismissed the revision application filed by the appellants challenging the order passed by District Judge, Family Court-1, Faridabad, Haryana in a petition under Section 125 Cr.P.C. observed in paragraph No.9 and 10 of the judgment as under:- 9) At the outset, it may be noted that Section 125 of Cr.P.C. was conceived to ameliorate the agony, anguish and financial suffering of a woman who is required to leave the matrimonial home, so that some suitable arrangements could be made to enable her to sustain herself and the children, as observed by this Court in Bhuwan Mohan Singh vs. Meena & Ors., (2015) 6 SCC 353 . This Court in the said case, after referring to the earlier decisions, has reiterated the principle of law as to how the proceedings under Section 125 Cr.P.C have to be dealt with by the Court. It held as under: "In Dukhtar Jahan v. Mohd. Farooq [ (1987) 1 SCC 624 : 1987 SCC (Cri) 237] the Court opined that : (SCC p. 631, para 16) 16. "… Proceedings under Section 125 [of the Code], it must be remembered, are of a summary nature and are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner." 8. "… Proceedings under Section 125 [of the Code], it must be remembered, are of a summary nature and are intended to enable destitute wives and children, the latter whether they are legitimate or illegitimate, to get maintenance in a speedy manner." 8. A three-Judge Bench in Vimala (K.) v. Veeraswamy (K.) [ (1991) 2 SCC 375 : 1991 SCC (Cri) 442], while discussing about the basic purpose under Section 125 of the Code, opined that : (SCC p. 378, para 3) 3. "Section 125 of the Code of Criminal Procedure is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing, and shelter to the deserted wife." 9. A two-Judge Bench in Kirtikant D. Vadodaria v. State of Gujarat [ (1996) 4 SCC 479 : 1996 SCC (Cri) 762], while adverting to the dominant purpose behind Section 125 of the Code, ruled that : (SCC p. 489, para 15) 15. "… While dealing with the ambit and scope of the provision contained in Section 125 of the Code, it has to be borne in mind that the dominant and primary object is to give social justice to the woman, child and infirm parents, etc. and to prevent destitution and vagrancy by compelling those who can support those who are unable to support themselves but have a moral claim for support. The provisions in Section 125 provide a speedy remedy to those women, children and destitute parents who are in distress. The provisions in Section 125 are intended to achieve this special purpose. The dominant purpose behind the benevolent provisions contained in Section 125 clearly is that the wife, child and parents should not be left in a helpless state of distress, destitution and starvation." 10. In Chaturbhuj v. Sita Bai [ (2008) 2 SCC 316 : (2008) 1 SCC (Civ) 547 : (2008) 1 SCC (Cri) 356], reiterating the legal position the Court held : (SCC p. 320, para 6) 6. "… Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Capt. Ramesh Chander Kaushal v. Veena Kaushal [ (1978) 4 SCC 70 : 1978 SCC (Cri) 508] falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. "… Section 125 CrPC is a measure of social justice and is specially enacted to protect women and children and as noted by this Court in Capt. Ramesh Chander Kaushal v. Veena Kaushal [ (1978) 4 SCC 70 : 1978 SCC (Cri) 508] falls within constitutional sweep of Article 15(3) reinforced by Article 39 of the Constitution of India. It is meant to achieve a social purpose. The object is to prevent vagrancy and destitution. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. The aforesaid position was highlighted in Savitaben Somabhai Bhatiya v. State of Gujarat [ (2005) 3 SCC 636 : 2005 SCC (Cri) 787]." 11. Recently in Nagendrappa Natikar v. Neelamma [ (2014) 14 SCC 452 : (2015) 1 SCC (Cri) 407 : (2015) 1 SCC (Civ) 346], it has been stated that it is a piece of social legislation which provides for a summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and her children". 10) This Court had made the above observations as the Court felt that the Family Court in the said case had conducted the proceedings without being alive to the objects and reasons, and the spirit of the provisions under Section 125 of the Code. Such an impression has also been gathered by this Court in the case on hand. The Family Court had disregarded the basic canon of law that it is the sacrosanct duty of the husband to provide financial support to the wife and to the minor children. The husband is required to earn money even by physical labour, if he is an able-bodied, and could not avoid his obligation, except on the legally permissible grounds mentioned in the statute. In Chaturbhuj vs, Sita Bai, it has been held that the object of maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy and destitution of a deserted wife, by providing her food, clothing, and shelter by a speedy remedy. As settled by this Court, Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children. As settled by this Court, Section 125 Cr.P.C. is a measure of social justice and is specially enacted to protect women and children. It also falls within the Constitutional sweep of Article 15(3), reinforced by Article 39 of the Constitution of India." 10. Hon'ble Apex Court concluded that the Court is not impressed by the submissions of learned counsel for the respondent that he had no source of income as his party business has been closed. The respondent being able bodied, he is obliged towards to earn by legitimate means and maintain his wife and the minor child. 11. Having regard to the evidence of the revisionist-wife before the Family Court and having regard to the other evidence on record, the Court has no hesitation in holding that though the respondent had sufficient source of income and was able bodied, had failed and neglected to main the applicants. 12. So far as the plea of revisionist with regard to attainment of majority by respondent No.2 Vanshika, the daughter of revisionist and respondent No.1 is concerned, a plea was taken on behalf of the revisionist that having attained majority during pendency of petition under Section 125 Cr.P.C., the respondent No.3 Vanshika is not entitled to maintenance is concerned, the provisions of Section 125 Cr.P.C. are liable to be reproduced as under:- “125. Order for maintenance of wives, children and parents. Order for maintenance of wives, children and parents. (1) If any person having sufficient means neglects or refuses to maintain- (a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation.- For the purposes of this Chapter,- (a) " minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority; (b) " wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried. (2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance. (2) Such allowance shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance. (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's allowances remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife' s refusal to live with him. (4) No Wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.” 13. On the basis of provision of Section 125(1)(c) Cr.P.C. and explanation appended thereto, above plea has been raised on behalf of the revisionist. 14. Hon'ble Apex Court considered this matter in Jagdish Jugtawat vs. Manju Lata And Others in SLP (Criminal) No.905 of 2001 decided on 23.4.2002. On the basis of provision of Section 125(1)(c) Cr.P.C. and explanation appended thereto, above plea has been raised on behalf of the revisionist. 14. Hon'ble Apex Court considered this matter in Jagdish Jugtawat vs. Manju Lata And Others in SLP (Criminal) No.905 of 2001 decided on 23.4.2002. In that case, respondent No.3, who was a minor, unmarried girl of appellant and his wife Manjulata, however, in course of time, she attained majority. Respondent No.1 wife of the appellant and mother of the respondent No.3 filed petition under Section 125 Cr.P.C. before Family Court claiming maintenance for herself and her two children, the family court by order dated 22.7.2000, granted maintenance at the rate of Rs.500/- per month to each of the applicants. The petitioners herein filed a revision petition before the High Court assailing the order of the family court on the ground, inter alia, that the respondent No.3 was entitled to maintenance only till she attains age of majority and not thereafter. Considering the point, learned Single Judge of the High Court accepted, the legal position that under Section 125 Cr.P.C., a minor is entitled to maintenance from her parents only till she attains majority, but decline to interfere with the order passed by the Family Court- taking the cue from Section 20(3) of the Hindu Adoptions and Maintenance Act, under which the right of maintenance is given to minor daughter till her marriage. Learned Single Judge was persuaded to maintain the order of the Family Court with a view to avoid the multiplicity of the proceedings, with observation that the Court is not inclined to interfere in the order of Family Court granting maintenance to respondent No.3 on the ground that she having attained majority would cease to have the benefit of the provisions of Section 125 Cr.P.C., though she would be entitled to claim benefits provided under the statute/personal law, as the order does not result in miscarriage of the justice, rather interfering with the order would create great inconvenience to respondent No.3 as she would be forced to file another petition under Sub-section (3) of Section 20 of the Act for further maintenance, etc. Hon'ble Apex Court affirmed the finding and observation made by the learned Single Judge of the High Court and observed that applying the principle to the facts and circumstances of the case in hand, it is manifest that the right of a minor girl for maintenance from parents after attaining majority till her marriage is recognized in Section 20(3) of the Hindu Adoptions and Maintenance Act. Therefore, no exception can be taken to the judgment/order passed by the learned Single Judge for maintaining the order passed by the Family Court which is based on a combined reading of Section 125 Cr.P.C. and Section 20(3) of the Hindu Adoptions and Maintenance Act. For the reasons aforestated we are of the view that on facts and in the circumstances of the case, no interference with the impugned judgment order of the High Court is called for. 15. Thus, in the light of pronouncements of Hon'ble Apex Court in aforesaid cases, this Court is of the opinion that the plea raised on behalf of the revisionist that having lost his job and being devoid of any regular employment, the revisionist may not be saddled with liability to maintain his wife and children, is not tenable. In the same vein, the respondent No.3 Vanshika, the daughter of the revisionist and respondent No.2 will not be deprived of the maintenance awarded by the learned Family Court only on the ground that during pendency of proceeding, she attained majority. However, this court is not oblivious of the fact that when the maintenance was awarded by the learned Principal Judge, Family Court, vide order dated 21.1.2015, the revisionist was residing in Portugal in connection with his livelihood and thus the fact is not denied that now he has lost his job abroad and came back to the place of his parents. This is also admitted position that revisionist and private respondents are residing in the same house, said to be built by parents of revisionist. This is also admitted position that revisionist and private respondents are residing in the same house, said to be built by parents of revisionist. He has taken a plea that he earns livelihood by some odd jobs like driving tempo and earns in meager amount whereas according to the submissions of learned counsel for the private respondents and averments in counter affidavit filed on behalf of the private respondents, the fee structure of her dependent children has been enhanced by the course of time and they are also taking tuition by private home tutor; it is also stated therein that it would be incorrect to stated that there is no earning of the revisionist and he has become jobless. The revisionist has not disclosed his real income before the court below in proceeding under Section 125 Cr.P.C. He made several defaults in payment of maintenance awarded by court below as modified by interim order passed by this Court. 16. Considering the changed circumstances related to the revisionist, which has affected his earnings as he lost his job in Portugal, this Court is of the view that the amount ordered by learned court below towards maintenance of the respondent No.2 to 4 is liable to be modified in the light of the facts and circumstances of the case. Impugned order passed by court below awarding maintenance to private respondents against present revisionist is modified to the extent mentioned as under:- (1) The revisionist shall pay monthly maintenance allowance at the rate of Rs.5,000/- to respondent No.1 Vinita Maurya and her daughters Vanshika and Niharika at the rate of Rs.2500/- per month to each of them with effect from 1.1.2015, as and when becomes due in the manner provided by the court below under the impugned award. (2) The arrears of maintenance will be computed in accordance with the direction No.1 as above, from 1.1.2015 and will be payable to the respondents in 10 equal and monthly installments, which will commence from the period of one month from the date of production of certified copy of this order before the court concerned. (3) Any amount deposited by the revisionist towards the maintenance allowance payable to opposite party Nos.2 to 4 either in terms of award of learned Principal Judge, Family Court or in terms of interim order of this Court dated 25.3.2015 will be adjusted into the amount payable by the revisionist. (3) Any amount deposited by the revisionist towards the maintenance allowance payable to opposite party Nos.2 to 4 either in terms of award of learned Principal Judge, Family Court or in terms of interim order of this Court dated 25.3.2015 will be adjusted into the amount payable by the revisionist. The amount payable by the revisionist will be spread over monthly installments as stated above. However, it is made clear that in the event of failure on the part of the revisionist to oblige any part of the order, coercive measures be revived from that stage and recoveries will be made in accordance with law. 17. Accordingly, the revision petition is disposed of in the manner and the maintenance awarded by the court below will stand modified to the above extent, accordingly. 18. Let a copy of this order be forwarded to court concerned for information and necessary actions.