Partly allowed

Mujeeb v. State of U.P. and 5 Others

Allahabad HC8 Oct 2021CRLR/2428/2021

Case brief

AI extract

What is this about?

In this criminal revision challenging a maintenance order, the High Court upheld the lower court's finding that the petitioner was liable to maintain his wife and minor children. The Court modified the order by extending the maintenance retrospectively from the application date rather than the evidence date, citing Supreme Court precedent.

What did the court decide?

Impugned maintenance order maintained but modified to award maintenance from the date of application instead of date of evidence.

Mujeeb Vs State of U.P. and 5 Others — Maintenance and Alimony | Allahabad HC (2021)

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Court No. - 83

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Case :- CRIMINAL REVISION No. - 2428 of 2021

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Revisionist :- Mujeeb Opposite Party :- State Of U.P. And 5 Others Counsel for Revisionist :- Arvind Kumar Singh Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Arvind Kumar Singh, learned counsel for revisionist and learned A.G.A. for State .

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Perused the record.

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This criminal revision under Sections 397/401 Cr.P.C. has been filed challenging judgement and order dated 03.03.20211 passed by Principal Judge, Family Court, Rampur, in Case No.07 of 2017 (Smt. Samar Jahan and others Vs. Mujeeb) under Section 125 Cr.P.C. Police Station Shahjad Nagar, DistrictRampur whereby aforesaid case has been allowed. Consequently, revisionist has been directed to pay monthly maintenance to opposite party-2, Smt. Samar Jahan @ Rs. 5,000/- and @ Rs. 1000 each to opposite parties-3, 4, 5 and 6. 4. Record shows that opposite party-2, Smt. Samar Jahan alongwith opposite parties 3,4,5 and 6, filed an application dated 09.01.2017, which was registered as Case No.07 of 2017 (Smt. Samar Jahan and others Vs. Mujeeb) under Section 125 Cr.P.C. Police Station Shahjad Nagar, District-Rampur. By means of aforesaid application, opposite party-2 alongwith her minor children i.e. opposite parties-3, 4,5 and 6 prayed that revisionist be directed to pay maintenance @ Rs. 4,000/- each. According to the allegations made in aforesaid application, it was alleged by opposite party-2, Smt. Samar Jahan that her marriage was solemnized with revisionist- 16 years prior to the date of application under Section 125 Cr.P.C. in accordance

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with Muslim Rites and Customs. From the wedlock of revisionist and opposite party-2, four children i.e. opposite parties- 3, 4, 5 and 5, were born. For reasons best known to revisionist, opposite party-2 was ousted from her marital home. She alongwith her minor children is residing separately at her maternal home. It was also alleged that revisionist has performed second marriage. Opposite party-2 further alleged that she is simply a housewife. She does not have knowledge of any trade or occupation and consequently, she is unable to maintain herself and her minor children. She however pleaded that revisionist is a tailor by profession and is also doing milk business, on account of which, his monthly income is Rs.40,000/- per-month. On basis of aforesaid, claim for maintenance was raised.

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Application under Section 125 Cr.P.C. filed by opposite partis-2, 3, 4, 5 and 6 was opposed by revisionist. He accordingly filed his written statement/objections to the same. However, copy of written statement/objections filed by revisionist to the application under Section 125 Cr.P.C has not been brought on record.

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After aforesaid exercise was completed, parties went to trial. Accordingly, court below on the basis of pleadings of parties, framed following six points of determination for effective adjudication of dispute:

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i. Whether opposite party-2, Smt. Samar Jahan is legally wedded wife of revisionist and opposite parties-3, 4, 5 and 6 are children of revisionist and opposite party-2.

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ii. Whether revisionist has ignored his wife.

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iii. Whether opposite party-2 is living separately on sufficient grounds.

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iv. Whether opposite party-2, has any sufficient source of income, on the basis of which, she can maintain herself and

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her minor children.

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v. Whether revisionist is man of sufficient means.

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vi. Relief.

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7.Opposite party-2, Smt. Samar Jahan in order to prove her case adduced herself as P.W.-1 and one Iqram as P.W.-2. However, no documentary evidence was filed by opposite party-2.

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Revisionist in support of his defence adduced himself as D.W.-1 and one Sabbu Khan as D.W.-2. Revisionist also did not filed any documentary evidence in support of his defence.

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Court below proceeded to decide the points of determination so framed by considering the pleadings of parties, and oral evidence on record. Issue no.1 was decided in favour of opposite party-2, Smt. Samar Jahan. Court below held that opposite party-2, Smt. Samar Jahan is legally wedded wife of revisionist and opposite parties-3, 4, 5 and 6 i.e. children have been born from wedlock of revisionist and opposite party-2. Issue nos. 2 and 3 were decided together. Court below dealt with aforesaid issues in detail. Upon deep and analytical examination of material on record, court below came to the conclusion that opposite party-2 alongwith her minor children is residing separately on sufficient grounds as cruelty was committed upon her. Furthermore, opposite party-2 cannot maintain herself as well as her minor children as she has no source of income. However, nothing has been brought on record by revisionist to establish that he has been maintaining his wife and minor children. With regard to issue no.4, court below on the basis of material on record, came to the conclusion that revisionist has failed to establish the income of opposite party-2. Placing reliance upon judgement of Apex Court in Rajathi Vs. C. Ganeshan AIR 1999 Supreme Court 2374 , court below held that burden to prove income of wife i.e. opposite party-2, is upon husband. In the present case,

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revisionist miserably has failed to discharge this burden. With regard to issue no.5, court below held that revisionist is a man of sufficient means. On the basis of findings returned by court below on points of determination no.1, 2, 3, 4 and 5, court below held that since revisionist a man of sufficient means he is therefore liable to pay maintenance to opposite parties-2, 3, 4, 5 and 6. Consequently, by means of impugned order court below awarded maintenance @ Rs.9,000/- per month from the date of evidence i.e. 10.06.2021. As such issue no.6 was decided against revisionist.

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Learned counsel for revisionist contends that order impugned in present criminal revision is manifestly illegal and without jurisdiction. Court below has allowed application under Section 125 Cr.P.C. filed by opposite party-2 on conjunctures and surmises. Court below has awarded maintenance in favour of opposite parties, 2, 3, 4, 5 and 6 without recording a finding regarding income of revisionist. It is then contended that it is clearly established from record that opposite party-2 alongwith her minor children is residing separately on insufficient grounds. Accordingly, claim for maintenance made by opposite parties, 2, 3, 4, 5 and 6 cannot be allowed. Court below has allowed the claim for maintenance prayed by opposite parties 2, 3, 4, 5 and 6 in an arbitrary manner. It is thus submitted that order impugned in present criminal revision is liable to be quashed and present criminal revision be allowed by this Court.

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Per contra, learned A.G.A. has opposed this revision. Learned A.G.A. contends that order impugned in present criminal revision is perfectly just and legal and therefore cannot be said to be unjust and arbitrary. Learned A.G.A. contends that court below has framed six points of determination which have been answered in favour of opposite parties 2, 3, 4, 5 and 6.

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Unless revisionist establishes perversity or illegality in the findings recorded by court below, impugned order is not liable to be interfered with. It is further submitted that it is now a proved fact that opposite party-2, Smt. Samar Jahan is legally wedded wife of revisionist and revisionist is father of opposite parties 2, 3, 4, 5 and 6. Consequently, revisionist is liable to maintain his wife and minor children, i.e. opposite parties-3,4,5 and 6. Learned A.G.A further submits that opposite party-2 alongwith her minor children is living separately since long. However, no material was filed either before court below or before this Court to show that revisionist has been maintaining opposite parties 2, 3, 4, 5 and 6. Revisionist has failed to discharge his obligation. On the aforesaid premise learned A.G.A. contends that court below has not committed any illegality in allowing the application under Section 125 Cr.P.C. filed by opposite parties 2, 3, 4, 5 and 6. He therefore submits that no indulgence be granted by this court in favour of revisionist.

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Having heard learned counsel for revisionist, learned A.G.A. for State and upon perusal of material brought on record, Court finds that court below has recorded a clear and categorical finding that marriage of revisionist was solemnized with opposite party-2. As such, opposite party-2 is legally wedded wife of revisionist. It is also a proved fact that opposite parties-3, 4, 5 and 6 are minor children, who have been born from the wedlock of revisionist and opposite party-2. Revisionist is thus father of minor children. Consequently, revisionist is legally and morally bound to maintain them. However, revisionist has failed to discharge this obligation. Court further finds that after evaluating pleadings of parties and evidence on record, court below has returned a definite finding that opposite party-2 alongwith her minor children is living

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separately from revisionist as cruelty was committed upon opposite party-2. However, there is nothing on record to show that revisionist has been maintaining his wife as well as his minor children since then. As such revisionist has clearly ignored his legally wedded wife and minor children and therefore, failed to maintain them. Aforesaid findings recorded by court below could not be dislodged as being illegal, perverse or erroneous.

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Considering the fact that, revisionist has failed to discharge his burden that opposite party-2 is earning and therefore, having sufficient amounts to sustain himself, court below has rightly awarded maintenance in favour of opposite party-2. Finding regarding income of revisionist inferred by court below on the basis of pleadings of parties cannot be faulted with particularly when revisionist is a healthy man and is not suffering from any physical or mental disability.

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On the basis of above, this Court has no hesitation to conclude that court below has not committed any jurisdictional error in passing order dated 03.03.2021. Court below has exercised its jurisdiction diligently and not with material irregularity. Findings recorded by court below are definite and cogent finding. Same cannot be said to be perverse, illegal or erroneous in the facts and circumstances of the case. It is well settled the once findings cannot be dislodged, the conclusion drawn by court below cannot be altered. Amount of maintenance awarded by court below in favour of opposite parties 2, 3, 4, 5 and 6 commensurates with the status of parties and in consonance with objective of section 125 Cr.P.C., which is a social and beneficial piece of legislation. Opposite parties2, 3, 4 5 and 6 have a right to live and not a right to exist. Moreover, by means of order impugned order, court below has adjudicated the equity particularly when opposite parties 2, 3,

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4, 5 and 6, who are wife and minor children of revisionist, who has has failed to maintain them.

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15 However, this Court finds that court below has awarded maintenance in favour of opposite parties, 2, 3, 4, 5 and 6 from the date of evidence of revisionist i.e. -10.06.2021. Same is manifestly incorrect and unsustainable in view of law laid down by Apex Court in Rajnesh Vs. Neha and others, 2021 (2) SCC 324 , in which it has been held that maintenance has to be awarded from the date of application and not from the date of order. However, no reasoning has been assigned by court below as to why maintenance is being awarded to opposite parties, 2, 3, 4, 5 and 6 from the date on which revisionist adduced evidence. Thus court below has committed an illegality in awarding maintenance to opposite parties 2, 3, 4, 5 and 6 from afore-mentioned date.

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Accordingly, impugned order dated 03.03.2021 is modified. Revisionist shall pay maintenance to opposite parties-2, 3, 4, 5 and 6 from the date of application.

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With the aforesaid modification impugned order is maintained.

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In view of above, present criminal revision is finally disposed of.

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Order Date :- 8.10.2021 YK

Mujeeb v. State of U.P. and 5 Others

Case brief

What is this about?

What did the court decide?

Mujeeb v. State of U.P. and 5 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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