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2024 DIGILAW 70 (ALL)

Ashish Verma v. State of U. P.

2024-01-08

RAM MANOHAR NARAYAN MISHRA

body2024
JUDGMENT : RAM MANOHAR NARAYAN MISHRA, J. 1. Heard Sri Shashank Tripathi, learned counsel for the revisionist, learned AGA for the State and perused the material placed on record. 2. As per the office report, notice was duly served on opposite party No. 2 but none appeared on her behalf to press present criminal revision. 3. Instant criminal revision has been preferred against the impugned order dated 05.01.2023, passed by leaned Additional Principal Judge, Family Court No. 2, Kanpur Nagar, in Maintenance Case No. 875 of 2021 (Smt. Arti and Others vs. Ashish Verma), under Section 125 Cr.P.C. By the impugned order, learned Principal Judge has allowed the application for interim maintenance filed by the applicants and has awarded Rs.3,000/- per month to the applicant No. 1 and Rs.2,000/- per month to each of her minor children as interim maintenance, which is payable on 10th of each calender month. 4. The brief facts leading to filing of present revision are that the applicant No. 1 Smt. Arti Soni, who is respondent No. 2 in present revision filed an application for maintenance under Section 125 Cr.P.C. before the Principal Judge, Family Court, Kanpur Nagar with averment that opposite party Ashish Verma is her husband and applicant Nos.2 and 3 are minor children born out of their wedlock. Applicant No. 1 was married with opposite party on 21.6.2021. Their marriage was solemnized according to the Hindu rites and rituals and parties belongs to Hindu community. She was send off to her matrimonial home after marriage and one son and one daughter born out of their wedlock with her husband. However, she was subjected to matrimonial cruelty soon after her marriage by opposite party and his family members due to non fulfilment of demand of dowry of Rs.1 lac cash, one gold chain, LCD TV and fridge. She was even deprived of square meal in her matrimonial home. She was given intensive beating by opposite party and his family members. However, she suffered all these misdeeds of opposite party with expectation that things will be better in course of time. She was even deprived of square meal in her matrimonial home. She was given intensive beating by opposite party and his family members. However, she suffered all these misdeeds of opposite party with expectation that things will be better in course of time. In the evening of 11.6.2021, her brother Sonu and sister-in-law Babita arrived at her matrimonial home to take her back to join a festive occasion at their place but she was not permitted to go to her parental place and family members of opposite party misbehaved and abused her brother and sister-in-law and also threatened the applicant with life. Her brother and sister-in-law were thrashed and beaten by her husband and his family members when they were off to their residence. She was again roughed up and assaulted badly by her husband and his family members, in which her minor daughter Vaishnavi also got severely injured. They snatched her ornaments and cash. She anyhow got herself saved and went to her home. Her in-laws are affluent people and local police is under their influence. They did not take any action against them. The opposite party is engaged in trade of gold and silver and also earns around Rs.1 lac per month from house rent. The applicant No. 1 is not having any source of income to maintain herself as well as her minor children. She prayed for Rs.10,000/- per month as maintenance to be awarded to each of the applicants. 5. Learned court below summoned the opposite party. He appeared and filed an objection on application of interim maintenance, in which he denied the allegations made in application for maintenance. He has stated that he himself is a victim of high handedness of his wife and her family members. The applicant is a highly educated lady. She has taken course of weaving and English, from which she earns around Rs.20,000/- per month. The opposite party is not having any regularly source of income. He is being victimized by his wife due to lack of money. Even he is ready to keep his wife and her children together with him. He is suffering from severe ailments and no money is left with him to provide interim maintenance. He was assaulted by brothers and associates of applicant No. 1. The marriage of the opposite party and applicant no. 1 was solemnized on 21.6.2014. She has concealed her income. He is suffering from severe ailments and no money is left with him to provide interim maintenance. He was assaulted by brothers and associates of applicant No. 1. The marriage of the opposite party and applicant no. 1 was solemnized on 21.6.2014. She has concealed her income. He has a lodged an FIR against the applicant and her family members on 11.6.2021, which registered as NCR No. 97 of 2021. He is under educated person and only a Class 8th pass out. 6. Learned court below after considering the pleadings and version of the parties, concluded that the opposite party has failed to adduce any documentary evidence in support of his version that the applicant No. 1 earns around Rs.20,000/- to 25,000/- per month by engaging in business of weaving. He has not filed any document with regard to his ailment and treatment after 8.6.2022. This is admitted fact that opposite party is husband of applicant no. 1 and applicant nos.2 and 3 are his children. The evidence of parties is yet to come in main case. The opposite party is duty bound to provide maintenance to his wife and children under law. With these findings, the court below has awarded the maintenance to the applicants, as above. It is also directed in impugned order that any amount obtained by the applicants towards maintenance will be liable to be adjustment. 7. Learned counsel for the revisionist submitted that the revisionist has filed supplementary affidavit, in which details of his ailment and treatment are mentioned. He has filed a number of medical documents in support of his ailment and treatment. He has filed an affidavit of assets and liabilities before the court below in compliance of directions of Hon’ble Apex Court in Rajnesh vs. Neha, (2020) 13 SCR 1093, in which he has clarified that he is a daily wage labourer and his monthly income is around Rs.3000/- per month, which also spends in his treatment. He is still undergoing treatment for his ailment. He is not having any other source of income. He has also shown his old parents, aged around 60 to 68 years, as dependants, apart from his wife and two children. A copy of affidavit dated 22.9.2022 has been filed alongwith supplementary affidavit. He is still undergoing treatment for his ailment. He is not having any other source of income. He has also shown his old parents, aged around 60 to 68 years, as dependants, apart from his wife and two children. A copy of affidavit dated 22.9.2022 has been filed alongwith supplementary affidavit. He has filed medical documents in support of his illness as annexure to supplementary affidavit, which reveal that he is still undergoing treatment for neuropsychiatric ailment at Medical College, Kanpur and a neuropsychiatric physician in Lucknow namely, Dr. R.K. Thukral. He has been undergoing treatment at Lucknow Neuropsychiatric Centre since 24.1.2023. He has filed medical papers up to May, 2023, which show that he is suffering from severe neurological disorder and spends substantial amount towards his treatment and survival. He was also admitted in a private hospital in Kanpur from 29.4.2023 to 2.5.2023 with complaint of hand tremors, insomnia and jerking movements. He further submitted that the learned court below in impugned order has circumvented the legal objections and submissions made by the revisionist as opposite party. Learned court below failed to consider the material available on record in proper perspective and accepted the version of the applicants at face value. The impugned order is perverse and is liable to be set aside. The revisionist is not able to pay interim maintenance awarded in impugned order to the applicants. 8. Per contra, learned AGA submitted that the learned court below has awarded maintenance to the applicants on lower side, which is minimum amount for their sustenance. The factum that applicant No. 1 is legally wedded wife and applicant Nos.2 and 3 are their offspring is not disputed. The revisionist is duty bound to maintain his wife and minor children under law. The impugned order warrants no interference in present criminal revision. 9. Hon’ble Apex Court in Rajnesh vs. Neha, (2020) 13 SCR 1093, observed as under: “Section 125 of the Cr.P.C. Chapter IX of Code of Criminal Procedure, 1973 provides for maintenance of wife, children and parents in a summary proceeding. Maintenance under Section 125 of the Cr.P.C. may be claimed by a person irrespective of the religious community to which they belong. The purpose and object of Section 125 Cr.P.C. is to provide immediate relief to an applicant. Maintenance under Section 125 of the Cr.P.C. may be claimed by a person irrespective of the religious community to which they belong. The purpose and object of Section 125 Cr.P.C. is to provide immediate relief to an applicant. An application under Section 125 Cr.P.C. is predicated on two conditions: (i) the husband has sufficient means and (ii) “neglects” to maintain his wife, who is unable to maintain herself. In such a case, the husband may be directed by the Magistrate to pay such monthly sum to the wife, as deemed fit. Maintenance is awarded on the basis of the financial capacity of the husband and other relevant factors. The remedy provided by Section 125 is summary in nature, and the substantive disputes with respect to dissolution of marriage can be determined by a civil court/family court in an appropriate proceeding, such as the Hindu Marriage Act, 1956. In Bhagwan Dutt vs. Kamla Devi, the Supreme Court held that under Section 125(1) Cr.P.C. only a wife who is “unable to maintain herself” is entitled to seek maintenance. The Court held: “19. The object of these provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate living can be fairly determined, only if her separate income, also, is taken into account together with the earnings of the husband and his commitments.” (Emphasis supplied) Prior to the amendment of Section 125 in 2001, there was a ceiling on the amount which could be awarded as maintenance, being Rs. 500 “in the whole.” In view of the rising costs of living and inflation rates, the ceiling of Rs. 500 was done away by the 2001 Amendment Act. The Statement of Objects and Reasons of the Amendment Act states that the wife had to wait for several years before being granted maintenance. Consequently, the Amendment Act introduced an express provision for grant of “interim maintenance.” The Magistrate was vested with the power to order the respondent to make a monthly allowance towards interim maintenance during the pendency of the petition. Consequently, the Amendment Act introduced an express provision for grant of “interim maintenance.” The Magistrate was vested with the power to order the respondent to make a monthly allowance towards interim maintenance during the pendency of the petition. Under sub-section (2) of Section 125, the Court is conferred with the discretion to award payment of maintenance either from the date of the order, or from the date of the application. Under the third proviso to the amended Section 125, the application for grant of interim maintenance must be disposed of as far as possible within sixty days’ from the date of service of notice on the respondent. The amended Section 125 reads as under: “125. 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. (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself. (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. (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself. (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. (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 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: Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allow for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct: Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person. 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) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be. (2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be. (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 allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, 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 a just ground for his wife's refusal to live with him. (4) No wife shall be entitled to receive an allowance for the maintenance or interim maintenance and expenses of proceeding, as the case may be, 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. (4) No wife shall be entitled to receive an allowance for the maintenance or interim maintenance and expenses of proceeding, as the case may be, 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.” (Emphasis supplied) In Chaturbhuj vs. Sitabai this Court 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. Section 125 of the Cr.P.C. is a measure of social justice especially enacted to protect women and children, and falls within the constitutional sweep of Article 15(3), reinforced by Article 39 of the Constitution. Proceedings under Section 125 of the Cr.P.C. are summary in nature. In Bhuwan Mohan Singh vs. Meena and Others this Court held that Section 125 of the Cr.P.C. was conceived to ameliorate the agony, anguish, financial suffering of a woman who had left her matrimonial home, so that some suitable arrangements could be made to enable her to sustain herself and the children. Since it is the sacrosanct duty of the husband to provide financial support to the wife and minor children, the husband was required to earn money even by physical labour, if he is able-bodied, and could not avoid his obligation, except on any legally permissible ground mentioned in the statute. The issue whether presumption of marriage arises when parties are in a live-in relationship for a long period of time, which would give rise to a claim u/s. 125 Cr.P.C. came up for consideration in Chanmuniya vs. Virendra Kumar Singh Kushwaha and Another before the Supreme Court. It was held that where a man and a woman have cohabited for a long period of time, in the absence of legal necessities of a valid marriage, such a woman would be entitled to maintenance. It was held that where a man and a woman have cohabited for a long period of time, in the absence of legal necessities of a valid marriage, such a woman would be entitled to maintenance. A man should not be allowed to benefit from legal loopholes, by enjoying the advantages of a de facto marriage, without undertaking the duties and obligations of such marriage. A broad and expansive interpretation must be given to the term “wife” to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time. Strict proof of marriage should not be a pre-condition for grant of maintenance u/S. 125 Cr.P.C . The Court relied on the Malimath Committee Report on Reforms of Criminal Justice System published in 2003, which recommended that evidence regarding a man and woman living together for a reasonably long period, should be sufficient to draw the presumption of marriage. The law presumes in favour of marriage, and against concubinage, when a man and woman cohabit continuously for a number of years. Unlike matrimonial proceedings where strict proof of marriage is essential, in proceedings u/S. 125 Cr.P.C. such strict standard of proof is not necessary. 10. In instant case, the main contention raised on behalf of the revisionist is that the respondent No. 2 is earning income by engaging in profession of weaving of cloths. She has also done specialization in English. She has obtained Post Graduation Degree. However, there is no document in support of the version of the revisionist that respondent No. 2 earns around Rs.20,000/- to Rs.25,000/- per month by her occupation. He has filed photocopies of some photographs, in which respondent No. 2 is shown to have been dealing in some cloths alongwith material used in embroidery. The revisionist has shown his monthly income around Rs.3000/- to 4000/- per month but the medical papers filed by him alongwith revision memo and supplementary affidavit itself show that he is undergoing specialized treatments in various reputed Government Hospitals/Medical Colleges as well as before highly reputed neuropsychiatric in Lucknow and Kanpur, which entails substantial expenditure, which is normally not affordable by a person of such meagre monthly income. The ailment detected by the Doctor suggests that he is having history of excessive alcohol dependency alongwith smoking and use of tobacco. The ailment detected by the Doctor suggests that he is having history of excessive alcohol dependency alongwith smoking and use of tobacco. Thus, it may be inferred that the ailments from which the revisionist is suffering are to some extent self-induced due to bad habits and for that he cannot shirk his family responsibilities. This is admitted fact that the respondents are wife and minor children of the revisionist, who are dependant to him only due to the fact that the respondent No. 2 is deriving some income by engaging in some odd jobs, the revisionist cannot be exempted from his responsibility to maintain his wife and minor children. At the stage of interim maintenance, the brief pleadings supported by affidavit are considered. This is not a final verdict and revisionist will have opportunity to prove his case at the final stage. The Courts have held that if the wife is earning, it cannot operate as a bar from being awarded maintenance by the husband. The Courts have provided guidance on this issue in the following judgments. 11. In Shailja and Another vs. Khobbanna, (2018) 12 SCC 199 , Hon’ble Apex Court held that merely because the wife is capable of earning, it would not be a sufficient ground to reduce the maintenance awarded by the Family Court. The Court has to determine whether the income of the wife is sufficient to enable her to maintain herself, in accordance with the lifestyle of her husband in the matrimonial home. Sustenance does not mean, and cannot be allowed to mean mere survival. 12. In Sunita Kachwaha and Others vs. Anil Kachwaha, (2014) 16 SCC 715 , the wife had a postgraduate degree, and was employed as a teacher in Jabalpur. The husband raised a contention that since the wife had sufficient income, she would not require financial assistance from the husband. The Supreme Court repelled this contention, and held that merely because the wife was earning some income, it could not be a ground to reject her claim for maintenance. The Bombay High Court in Sanjay Damodar Kale vs. Kalyani Sanjay Kale, 2020, SCC Online Bom. 694, while relying upon the judgment in Sunita Kachwaha (supra), held that neither the mere potential to earn, nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim of maintenance. The Bombay High Court in Sanjay Damodar Kale vs. Kalyani Sanjay Kale, 2020, SCC Online Bom. 694, while relying upon the judgment in Sunita Kachwaha (supra), held that neither the mere potential to earn, nor the actual earning of the wife, howsoever meagre, is sufficient to deny the claim of maintenance. An able-bodied husband must be presumed to be capable of earning sufficient money to maintain his wife and children, and cannot contend that he is not in a position to earn sufficiently to maintain his family, as held by the Delhi High Court in Chander Prakash Bodhraj vs. Shila Rani Chander, AIR 1968 Delhi 174. The onus is on the husband to establish with necessary material that there are sufficient grounds to show that he is unable to maintain the family, and discharge his legal obligations for reasons beyond his control. If the husband does not disclose the exact amount of his income, an adverse inference may be drawn by the Court. 13. Hon’ble Apex Court in Shamima Farooqui vs. Shahid Khan, (2015) 5 SCC 705 , cited the judgment in Chander Prakash (supra) with approval, and held that the obligation of the husband to provide maintenance stands on a higher pedestal than the wife. 14. Maintenance of minor children The living expenses of the child would include expenses for food, clothing, residence, medical expenses, education of children. Extra coaching classes or any other vocational training courses to complement the basic education must be factored in, while awarding child support. Albeit, it should be a reasonable amount to be awarded for extra-curricular/coaching classes, and not an overly extravagant amount which may be claimed. Education expenses of the children must be normally borne by the father. If the wife is working and earning sufficiently, the expenses may be shared proportionately between the parties. 15. Serious disability or ill health Serious disability or ill health of a spouse, child/children from the marriage/dependant relative who require constant care and recurrent expenditure, would also be a relevant consideration while quantifying maintenance. 16. On the basis of foregoing discussion, this Court is of the considered view that the amount of interim maintenance, which is to the tune of Rs.3,000/- to wife and Rs.2,000/- per month to each of the minor children is on lower side. It is neither excessive nor exorbitant. 16. On the basis of foregoing discussion, this Court is of the considered view that the amount of interim maintenance, which is to the tune of Rs.3,000/- to wife and Rs.2,000/- per month to each of the minor children is on lower side. It is neither excessive nor exorbitant. In fact, this is the minimum amount of survival and sustenance of a person and it require no reduction keeping in view the present market conditions. The revision is devoid of merits and it deserves to be dismissed. 17. Accordingly, present criminal revision stands dismissed. 18. However, the arrears of maintenance from the date of filing of application to December, 2023 will be payable in four equal monthly instalments, out of which first instalment will be due from 10th February, 2024 and apart from that the revisionist will keep on paying maintenance in aggregate to the tune of Rs.7,000/- per month to the private respondents from January, 2024 on regular basis, till further order of trial court, as directed in the impugned order.