Partly allowed

Rahul v. State of U.P. and Another

Allahabad HC5 Apr 2018CRLR/982/2018

Case brief

AI extract

What is this about?

The court examined a revision against an ex-parte maintenance order and a rejection of an application under Section 126(2). While rejecting the challenge to ex-parte proceedings due to the petitioner's non-appearance, the court modified the maintenance quantification and payment timeline based on claimed financial constraints, citing the legislative intent to prevent delay-induced suffering.

What did the court decide?

Ex-parte award modified to reduce arrears by Rs. 40,000. Petitioner directed to pay Rs. 40,000 for July 2017 to April 2018 in installments and Rs. 3,000/month for period May 2018 onwards.

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

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Court No. - 49

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Case :- CRIMINAL REVISION No. - 982 of 2018

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Revisionist :- Rahul Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Akhilesh Kumar Pandey Counsel for Opposite Party :- G.A.

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Hon'ble Saumitra Dayal Singh,J.

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Heard learned counsel for the applicant and learned AGA for the State as also perused the record.

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The present criminal revision has been filed against the exparte order dated 07.07.2017 passed by the learned Family Judge/Fast Track Court No.1, Bareilly in Criminal Misc. Case No.1491 of 2014 (Smt. Rama Vs. Rahul), under Section 125 Cr.P.C., by which monthly maintenance allowance @ Rs. 4,000/- per month (to the opposite party no. 2), has been awarded by the learned court below from the date of the application being 11.09.2014. Also, he has challenged the order dated 08.12.2017, by which the application filed by the present applicant under Section 126(2) Cr.P.C. has been rejected.

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As to the rejection of the application U/s 126 (2) Cr.P.C., it is seen that notice was issued on the application filed by the opposite party no.2 under Section 125 Cr.P.C.. The applicant had appeared in the proceedings and filed his objection. Thereafter, the opposite party no.2 was examined. However, applicant failed to appear in the proceeding thereafter. Thus, neither the applicant cross examined the opposite party no.2 nor led any evidence. Consequently, the matter was proceeded exparte against the applicant.

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In his application filed under Section 126 (2) Cr.P.C. the applicant submitted that he appeared in the proceeding on 23.05.2017, but that the applicant forgot to appear on the next date fixed. It is then submitted that the applicant's lawyer told him that the next date fixed was after two months. He then claimed to have met the court staff personally on 01.07.2017, when he was informed on 12.07.2017 that his case had been decided exparte on 07.07.2017.

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The said plea made by the applicant was opposed by the opposite party no.2. She stated that the matter was proceeded exparte against the applicant from before the date 23.05.2017 disclosed by the applicant.

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Learned court below has observed that the date 23.05.2017 was the date fixed for cross examination of the opposite party no.2 but that the applicant did not appear on that date and therefore, the matter proceeded further. By order dated 03.06.2017, the matter was then directed to proceed exparte against the applicant. Consequently, it was decided exparte on 07.07.2017.

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In view of such facts, the court below did not commit any error in rejecting the application filed by the applicant under Section 126 (2) Cr.P.C.. The applicant was himself to blame for not continuing to participate in the proceeding. The explanation furnished by the applicant for his non appearance has rightly been disbelieved as the applicant did not appear after 23.05.2017, despite clear knowledge of the proceeding and the crucial stage of evidence reached therein. Once the applicant admitted to have signed the order-sheet on 23.05.2017, he could not deny the knowledge on the date fixed i.e. 03.06.2017. The explanation furnished by the applicant that he forgot that date (fixed on 23.05.2017), is unbelievable.

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Insofar as the quantification of the monthly maintenance allowance is concerned, learned counsel for the applicant submits that the applicant is running a petty business of ' Chat ' and also he has other liability to take care of being his old parents and younger siblings.

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It is further submitted that other than oral statement made by the opposite party no.2 that the applicant was a Tempo driver, no evidence was led to establish that the applicant was earning Rs. 15,000/- per month.

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Thus, despite notice issued in the present revision, none has appeared on behalf of the opposite party no.2 nor any counter affidavit is available on record.

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Thus, on one hand there is oral testimony of the opposite party no.2 that the applicant is engaged as Tempo driver and earning Rs. 15,000/- per month, wherefrom she had claimed Rs. 8,000/per month as maintenance allowance, on the other hand, only this much has been stated in paragraph 14 of the affidavit filed in support of present revision that the applicant is very poor and that his father is running a petty business of ' Chat '. Then the applicant has not led any evidence to establish his real income.

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However, it also remains undisputed that the applicant is an able bodied person.

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Considering the scope of Section 125 Cr.P.C. which is a measure of social justice to provide minimum means for

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sustenance to the claimant/s as are necessary to human life and dignity to preserve vagrancy certain minimum amounts are necessary to be provided to the claimants.

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Considering the fact that the applicant is an able bodied person and in view of the fact that it does appear that he is operating a tempo for hire, quantification of monthly maintenance allowance @ Rs. 4,000/- per month from the date of the order does not suffer from any infirmity. It is sustained.

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It has then been submitted that the learned court below has erred in awarding monthly maintenance allowance from the date of application, whereas it should have made from the date of order.

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Insofar as the order has been made for payment of maintenance amount from the date of application, I do not find any error in the same in view of the fact that the application had been filed by the opposite party on 11.09.2014, which ought to have been decided within a period of 60 days from that date. However, the same has been decided more than 35 months from the date when such application was filed.

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For a very long time, the opposite party did not receive any amount towards maintenance as had been claimed by her and which under law, she was entitled to. Also, even upon amount as claimed becoming payable she did not become entitled to any interest for the inordinate delay.

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The cost of such delay, has to be borne by the applicant herein and not the opposite party/claimant especially, when the law created an expectation for the application to be decided within sixty days of it being filed.

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Also, there does not appear to exist any material whereby the delay caused in the proceedings may be attributed to the opposite party.

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The amount of monthly maintenance allowance being minimal, it is the arrears of that allowance, when paid would be such as may be able to defray the costs of dignified existence at the sufferance of the applicant. Such expenses may be assumed to be such as would have been necessarily borne by the applicant, had the opposite party resided with him all this while.

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The applicant cannot deny the care to the opposite party-his wife, for the period she has not resided with him for reason of marital discord, except if the bar of section 125 Cr. P.C. operates. No such bar operates in this case. Consequentially,

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though the opposite party no.2 may have stayed physically apart from the applicant, the applicant has to still bear her expenses necessary to preserve her dignified human existence, keeping in mind the financial and social status of the parties.

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Also, the applicant cannot be heard to say, that he would bear such expenses only from the date of the order. The applicant-an able bodied person is responsible to take care of all the financial needs of his wife from her marriage and not the date from which the court passes an order in that regard. Only upto the date, an application is made, would a defence be available to the applicant that such needs have been taken care of. Also, the learned court below has not found the opposite party to be a person with any earning to provide for her own needs.

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Even otherwise, such a plea is being raised in numerous cases. It is common fact noticed in all such cases that proceedings under section 125 Cr.P.C. are never concluded within 60 days in accordance with the legislative spirit. In many cases the applications are decided with a delay ranging between two to five years. To accept the argument advanced by learned counsel for the applicant would be to incentivize delay for the benefit of the person who has to provide for the means of sustenance and to the peril of the hapless victim for whose benefit the provision of section 125 Cr.P.C. exists.

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An application filed under section 125 Cr.P.C., is a loud cry for help for means to sustain life with dignity which, the legislature expects, is answered promptly. The fact that such a cry made by the applicant is often doubted by the person at whose sufferance the order (is eventually made) and therefore the application remains pending for a long period time, cannot itself be a ground to deny the help cried out for, for the period such application remained pending. To do that would compromise human dignity that section 125 Cr.P.C. seeks to protect, and to risk vagrancy that it seeks to prevent.

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To hold otherwise would be to reach self contradicted conclusions. Once, upon objections being filed, evidence being led and after hearing all parties, it has been found that the claimant did not have the means to sustain herself for any period, it cannot then be said, at the same time, that too without assigning any reason that such means would be provided from the date of the order and not the date from which the claimant has established, she had no means.

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In any case, date of the order has no bearing to the date from which the claimant seeks relief. That date is indeterminate and varies from case to case. To accept the date of the order as the

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date from when maintenance allowance is to be allowed, in absence of any reason given in such order may render the order arbitrary, to that extent.

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The applicant in such cases may have somehow survived the period of pendency of the application. However, her survival cannot be evidence or proof of her not having required the help for the period (often years) gone by. Costs of survival have to be presumed to have been met by the claimant party, from whatever sources. They must be defrayed by the person who is held liable to provide for maintenance unless the contrary is proved.

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Therefore, in my view the award of the maintenance from the date of application does not suffer from any infirmity.

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Considering the fact that the arrears from the date of application to the date of order would be of 35 months amounting to Rs. 1,40,000/- at the awarded rate, in view of financial stringency claimed by the applicant arising from his involvement in a petty vocation, the impugned order is modified to the extent that applicant shall pay monthly maintenance allowance to opposite party no. 2 for the period date of application to the date of order @ Rs. 3,000/- per month.

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Insofar as the applicant has prayed for time to make good the deficiency of deposit, looking into the facts it does appear that the applicant has modest earnings, the ends of justice would be met, if the applicant is allowed some time to make such deposit.

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Accordingly, the exparte impugned award dated 07.07.2017 is modified to the extent that the award from the date of application till the date of order @ Rs. 3,000/- per month and rest of the order shall remain intact. The instant revision is disposed of with the following directions:

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Subject to the applicant furnishing adequate security to the tune of Rs. 1,45,000/- to the satisfaction of the court below in the shape of other than cash or bank guarantee by 15.05.2018, further coercive measures adopted against the applicant shall remain stayed, subject to other conditions provided herein.

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The applicant shall continue to pay the monthly maintenance allowance from the period May, 2018 onwards @ Rs. 4,000/per month as and when it becomes due, in the manner provided by the court below under the impugned award.

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The applicant shall further pay Rs. 40,000/- towards

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maintenance allowance for the period July, 2017 to April, 2018 shall be paid in two equal quarterly instalments of Rs. 20,000/each on or before 31.05.2018 and 31.08.2018.

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Subject to the applicant having complied with the above, the amount of Rs. 1,05,000/- (approximately) being arrears of maintenance allowance for the period from the date of application till the date of order @ Rs. 3,000/- per month shall be deposited in seven bi-monthly instalments, such instalments being payable on or before 30.09.2018, 30.11.2018, 31.01.2019, 31.03.2019, 31.05.2019, 31.07.2019 and 30.09.2019 respectively. The first six instalments would be of Rs. 15,000/each while the seven/last instalment would be for the balance amount.

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Any amount deposited by the applicant may be adjusted towards last payment/s to be made by the applicant.

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All the amounts if deposited by the applicant in the Court below shall be released to the opposite party no.2 forthwith.

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However, it is made clear that in the event of failure on part of the applicant to comply with any part of the order, coercive measures be revived from that stage without any further reference to this Court and recoveries be made from the applicant in compliance of this order.

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Order Date :- 5.4.2018 Lbm/-

Rahul v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Rahul v. State of U.P. and Another

Case brief

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What did the court decide?

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