Allowed

Jyoti Nishad and Another v. State of U.P. and Another

Allahabad HC3 May 2018CRLR/642/2018

Case brief

AI extract

What is this about?

In a criminal revision under Section 125 Cr.P.C., the High Court set aside the Family Court's order rejecting the petitioner's maintenance claim for herself and her daughter. The revoviing Court held that the lower court erred in assuming lack of evidence regarding the child's paternity and failure to disprove the petitioner's actual earning capacity, and remitted the matter for fresh decision.

What did the court decide?

The impugned order of the Family Court was set aside, and the matter was remitted to be decided afresh within three months. Leave to file for interim maintenance was granted.

Jyoti Nishad and Another Vs State of U.P. and… — Maintenance and Alimony | Allahabad HC (2018)

¶1

Court No. - 49

¶2

Case :- CRIMINAL REVISION No. - 642 of 2018

¶3

Revisionist :- Jyoti Nishad And Another Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Uttar Kumar Goswami Counsel for Opposite Party :- G.A.

¶4

Hon'ble Saumitra Dayal Singh,J.

¶5

Heard learned counsel for the applicants and learned A.G.A. for the State.

¶6

Service on opposite party no.2 is reported to be complete. However, none has appeared to press this application.

¶7

The present revision has been filed against the order dated 20.1.2018 passed by the Principal Judge, Family Court, Chitrakoot in Criminal Misc. Case no. 157 of 2016 (Smt. Jyoti Nishad and another Vs. Suneel Kumar), Police Station Rajapur, District Chitrakoot, by which the application filed by the applicants under Section 125 Cr.P.C., has been rejected.

¶8

It appears that the applicants had filed an application for grant of maintenance allowance to herself and her daughter.

¶9

The learned court below had rejected the application on the reasoning contained in the order- that the applicants did not lead any evidence to establish that her child was born from her marriage with the opposite party no.2. Even as to her own claim for maintenance allowance, the same has been rejected on the reasoning that she has an earning capacity.

¶10

While, there is some inconsistency in the pleading made by the applicant in her application under Section 125 Cr.P.C. and in her statement recorded before the learned Court below. However, it cannot be disputed that in her application filed under Section 125 Cr.P.C., the applicant had categorically stated that she was married to opposite party no.2 and she prayed for maintenance allowance both for herself as also for her child.

¶11

During her statement recorded before the learned court below, the applicant proved the fact of marriage having been performed between the parties and that she had been forcibly turned out of her marital home because her parents could not satisfy the demand for dowry. She further stated that she was last turned out of her marital home on 24.8.2015. Her statement was recorded thereafter on 10.9.2015, wherein she stated that at that time she was eight months pregnant.

¶12

In view of such evidence led by the applicant before the learned Court below and no evidence led by the opposite party no.2 to rebut the presumption thus raised the express presumption raised under section 112 of the Evidence Act, became absolute. It was not open to the learned Court below to reject the claim of the applicant no. 2 that there was no evidence to establish that the said child was born out of the marriage of applicant no. 1 with the opposite party no.2. The finding recorded by the learned court below is thus perverse and clearly erroneous. Clearly, applicant no.2 is the daughter of opposite party no.2 and therefore, claim of maintenance allowance made on her behalf was maintainable.

¶13

Even as to the rejection of the claim of the applicant for maintenance, the finding recorded by the learned court below are largely cryptic and inadequate. Merely, because her father stated that she could stitch clothes the applicant no.1 did not became disentitled to payment of maintenance allowance from opposite party no.2 for that reason. In absence of any evidence to establish any actual earning of applicant no.1 and/or of any vocation as may give rise to actual earning, her claim could not have been rejected.

¶14

Learned counsel for the applicant further states that the finding recorded by the learned Court below that the opposite party no.2 is disabled, is erroneous. According to the applicant, the opposite party no.2 is an able bodied person and he is working as a mason.

¶15

The impugned order dated 20.1.2018 therefore cannot be sustained and is hereby set aside. The matter is remitted to the learned court below to decide the afresh, as expeditiously as possible, preferably within a period of three months from the date of communication of this order.

¶16

It would also be open to the applicants to file an application for grant of interim maintenance. If such application is filed within three week from today, the same may be necessarily decided within three months from the date of communication of this order.

¶17

The present criminal revision is allowed .

¶18

Order Date :- 3.5.2018 Mini

Jyoti Nishad and Another v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Jyoti Nishad and Another v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Rajeev Vs State of U.P. and Another

Pratima Bharti Vs Suresh Kumar

Mohd. Akeel Vs State of U.P. and Another

Nanhelal Kashyap Vs State of U.P. and 3 Ors.

Virendra Pathak Vs State of U.P. and Anr.

Amit Sharma Vs State of U.P. and another