Dismissed

Abhay Kumar Dixit v. State of U.P.and Others

Allahabad HC7 Sept 2018CRLP/10325/2004

Case brief

AI extract

What is this about?

This court dismissed the petitioner's criminal writ petition seeking revision of an order awarding maintenance under Section 125 Cr.P.C. to the wife and daughter. The court held that the orders below were correct and no compliance with the earlier interim order had been submitted.

What did the court decide?

The present writ petition is dismissed as it is bereft of merit; no interference with the lower court orders is called for.

Abhay Kumar Dixit Vs State of U.P.and Others — Maintenance and Alimony | Allahabad HC (2018)

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Court No. - 41

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Case :- CRIMINAL MISC. WRIT PETITION No. - 10325 of 2004

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Petitioner :- Abhay Kumar Dixit Respondent :- State Of U.P.And Others Counsel for Petitioner :- Sudhir Shandilya,Vivek Shadilya Counsel for Respondent :- Govt. Advocate,M.N. Singh,V.K. Singh

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Hon'ble Aniruddha Singh,J.

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1-Heard Sri Vivek Shandilya, learned counsel for the petitioner, Sri M.N. Singh, learned counsel for the respondent and learned A.G.A. for the State and perused the record.

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2-This criminal writ petition has been filed by the petitioner against the order dated 19.3.2004 in Complaint Case No. 43 of 2001 passed by the Civil Judge (Senior Division), Chitrakoot, under Section 125 Cr.P.C. whereby application of Smt.Raj Kumari and his daughter was allowed and Rs.800/- per month maintenance to Smt. Raj Kumari and Rs.200/- per month maintenance to her daughter was awarded from the date of judgment. Against which, Criminal Revision No.35 of 2004 filed by Smt. Raj Kumari was partly allowed and Criminal Revision No.47 of 2004 filed by the petitioner was dismissed vide order dated 27.10.2004 and the petitioner was directed to pay Rs.1400/- per month maintenance to Smt. Raj Kumari and Rs.600/- per month to her daughter from the date of judgment. Hence this writ petition.

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3-From perusal of the record, it transpires that vide order dated 16.12.2004 passed by this Court, petitioner was directed to pay Rs.800/-per month to Smt. Raj Kumari and Rs.200/- per month to her daughter with arrears but no compliance report has been submitted. It appears that the petitioner is not complying with the order of this Court. Learned counsel for the petitioner was also unable to apprise the Court whether the compliance is being made by the petitioner or not. Hence this writ petition is liable to be dismissed on this very ground only.

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4-On perusal of the record and judgment of both the courts below, it appears that marriage between Abhay Kumar Dixit and Smt. Raj Kumari was solemnized on 25.11.1996 and one daughter was born out of their wedlock. Allegation of Smt. Raj Kumari was that the petitioner was a drunken man and always misbehaved with her and he tortured for demand of dowry.

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5-From perusal of the record and after hearing the arguments of learned counsel for the parties the marriage between Abhay Kumar Dixit and Smt. Raj Kumari is admitted and daughter is

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also admitted. Hence, presumption of Section 112 of the Evidence Act will also lie against the petitioner.

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6- So far as amount of maintenance is concerned, it is admitted that the petitioner is a Government employee and is working in Railway Department. The allegation made by the petitioner against Smt. Raj Kumari that she is doing tuition and earning some money and is able to maintain herself and her daughter but on this issue no sufficient evidence has been produced by the petitioner to show that she is earning and able to maintain herself and her daughter, but it is admitted that the petitioner is a Government employee. If this Court presumed that she is getting income from tuition and it is not permanent source of income and on this basis application under Section 125 Cr.P.C. cannot be rejected. What amount she is getting is also not proved by the petitioner. The amount awarded by the revisional court is not excessive seeing the life style and the present market value.

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7- On the point of finding of facts, both the courts below have given concurrent findings of fact and view taken by both the courts below are plausible view, hence no interference is called for.

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8- In the memorandum of petition, the petitioner has narrated the grounds as follows:

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(i) The impugned order is bad in law, against the evidence on record, illegal and arbitrary.

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(ii) Respondent no.2 went her parental house and did not return in spite of several attempts made by the petitioner and his family members.

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(iii) The maintenance awarded by the courts below is excessive.

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9- Learned A.G.A. submitted that the ground raised in the petition is without substance. The courts below have recorded specific finding on this point and the revision has been dismissed. Due to misbehaviour of the petitioner, the wife of the petitioner is living separately.

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10- Question is whether opposite party no. 2 has succeeded to prove her case. Prove is defined under Section 3 of Evidence Act which is quoted here as under:-

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"Proved".-A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought,

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under the circumstances of the particular case, to act upon the supposition that it exists."

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11- Question is whether a prudent man can believe that facts shown in the application of opposite party no. 2 do exist.

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12- Proceeding under Section 125 Cr.P.C. is summary proceeding. Order does not determine rights of parties as it was held by the Apex Court in Dwarika Prasad Satpathy vs. Bidyut Prava Dixit and Another, AIR 1999 SC 3348, wherein following has been observed:-

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"It is to be remembered that the order passed in an application under Section 125 Cr.P.C. does not finally determine the rights and obligations of the parties and the said section is enacted with a view to provide summary remedy for providing maintenance to a wife, children and parents. For the purpose of getting his rights determined, the appellant has also filed a Civil Suit, which is pending before the trial court. In such a situation, this Court in S. Sethurathinam Pillai v. Barbara alias Dolly Sethurthinam, {1971 (3) SCC 923} observed that maintenance under Section 488 Cr.P.C., 1898 (Similar to Section 125 Cr.P.C.) cannot be denied where there was some evidence on which conclusion for grant of maintenance could be reached. It was held that order passed under Section 488 is a summary order which does not finally determine the rights and obligations of the parties; the decision of the criminal court that there was a valid marriage between the parties will not operate as decisive in any civil proceeding between the parties."

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In the case of Ramesh Chander Kaushal v. Mrs. Veena Kaushal and others, (AIR 1978 SC 1807) Krishna Iyer, J dealing with interpretation of Section 125 Cr.P.C. observed (at Para 9) thus:-

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"This provision is a measure of social justice and specially enacted to protect women and children and falls within the constitutional sweep of Article 15(3) reinforced by Article 39. We have no doubt that sections of statutes calling for construction by courts are not petrified print but vibrant words with social functions to fulfil. The brooding presence of the constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause of the derelicts."

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14- Section 125 Cr.P.C. is a measure of social justice on this point. It is also pertinent to mention here that intention of

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legislature also shows that this provision is measure of social justice because initially amount of maintenance was fixed to Rs.500/- per month. Subsequently, it was enhanced upto Rs.5000/- per month and later on these words have been deleted and present position is that there is no financial limit for maintenance under this section.

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15- In my opinion even if there is a valid decree of divorce, still the wife is entitled to maintenance till she gets remarried and becomes the wife of another person, if she qualifies all other aspects of Section 125 Cr.P.C. because explanation (b) of Section 125 Cr.P.C. specifically says that wife includes a woman who has been divorced by or has obtained a divorce from her husband and has not remarried.

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16- Therefore, all grounds are without substance. No other ground has been pressed before this Court. The Courts below have carefully noticed all facts and has rightly decided the case in favour of opposite party no.2. This Court finds no illegality, impropriety, material irregularity or jurisdictional error in the impugned order. No interference is called for. The present writ petition is bereft of merit and is hereby dismissed.

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17-. Copy of this order be transmitted to the court concerned to proceed in accordance with law.

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Order Date :- 7.9.2018 OP

Abhay Kumar Dixit v. State of U.P.and Others

Case brief

What is this about?

What did the court decide?

Abhay Kumar Dixit v. State of U.P.and Others

Case brief

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