Revisionist challenged maintenance order awarding Rs. 3000/month to wife and Rs. 1000/month to minor daughter under Section 125 Cr.P.C. Court rejected claim of insufficient means and dismissed revision, holding findings bona fide and order legal.
Revision dismissed. Cost made easy. Impugned order dated 21.11.2020 remains in force.
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Court No. - 83
Case :- CRIMINAL REVISION No. - 463 of 2021
Revisionist :- Dharamveer Singh Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Manish Pandey Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Manish Pandey, learned counsel for revisionist and learned AGA for State.
Perused the record.
This criminal revision has been filed by Dharamveer Singh the revisionist challenging judgement and order dated 21.11.2020 passed by Additional Principal Judge, Family Court, Budaun in Case No.198 of 2019, Smt. Pinky Vs. Dharamveer Singh under Section 125 Cr.P.C., Police Station Kadarchauk, District Budaun whereby maintenance has been awarded @ Rs.3000/per month in favour of opposite party 2 Smt. Pinky and Rs.3000/- per month in favour of minor daughter of opposite party 2 from the date of application i.e. 8.2.2019. It is however provided in aforesaid order that maintenance awarded to minor daughter shall come to an end on the date of her attaining majority.
Present Criminal Revision came up for admission on 19.2.2021, and this court passed following order:-
"The Additional Principal Judge, Family Court, Budaun vide order dated 21.11.2020 passed in Criminal Misc. Case No. 198 of 2019, has awarded the wife maintenance in the sum of Rs. 3000/- per month and to the parties' minor daughter in the sum of Rs. 1000/- per month aggregating a sum of Rs. 4000/- per month from the date of application attended with a direction that the maintenance payable to the minor daughter shall come to an end on her attaining majority or her marriage. It is submitted that the maintenance awarded is way beyond the financial status of parties and the wife is living apart without sufficient cause.
Admit.
Issue notice.
Notice is made returnable on 13.04.2021.
Summon the lower court record at once.
List on 13.04.2021 along with a report regarding service and the records of the lower court record annexed.
Until further orders, subject to the revisionist's depositing a sum of Rs. 3000/- per month from the date of the impugned order with the Additional Principal Judge, Family Court, Budaun by the 10th of each month, the operation of the impugned order dated 21.11.2020 passed in Criminal Misc. Case No. 198 of 2019, under Section 125 Cr.P.C. shall remain stayed. The arrears of maintenance reckoned from the date of the order calculated at the rate of Rs. 3000/- per month will be deposited by the 15th April, 2021 before the Additional Principal Judge, Family Court. Arrears of the sum of maintenance, if deposited and all deposits of maintenance, as and when made, shall be released in favour of opposite party no. 2 by the Additional Principal Judge, Family Court, Budaun forthwith without asking the said opposite party to furnish any security. In case of default, this interim order shall stand automatically vacated."
In compliance of above order dated 19.2.2021 notice was issued to opposite party 2. Office has submitted a report dated 19.7.2021 stating therein that notice issued to opposite party 2 has been served personally as per report submitted by Chief Judicial Magistrate, Budaun. Same is on record. However, inspite of service of notice no one has put in appearance on behalf of opposite party 2.
Lower court record has also been received.
Record shows that opposite party 2 Smt. Pinky filed an application dated 8.2.2019 under Section 125 Cr.P.C. claiming maintenance for herself and her minor daughter from revisionist. Same was registered as Case No.198 of 2019, (Smt. Pinky Vs. Dharamveer Singh). Perusal of above application filed by opposite party 2 which is on record as annexure-1 to the affidavit it transpires that opposite party 2 alleged that her marriage was solemnized with revisionist in accordance with Hindu Rites and Customs about three years and six months ago. From the wedlock of opposite party 2 and revisionist a girl child was born. Opposite party 2 further alleged that revisionist and his family members were not satisfied with the dowry given at the time of marriage. Additional dowry to the tune of Rs.2,00,000/- and a motorcycle was demanded. As additional demand of dowry was not satisfied on the ground that parents of opposite party 2 were incapable of satisfying the additional demand of dowry, opposite party 2 was subjected to physical
and mental cruelty. Opposite party 2 was ousted from her marital home on 21.11.2018 in a clandestine manner. Since then opposite party 2 along with her minor daughter is living separately at her parental home. Inspite of having sufficient means revisionist failed to maintain opposite party 2 as well as the minor daughter. Opposite party 2 has no sufficient means to maintain herself or her minor daughter.
Application filed by opposite party 2 under Section 125 Cr.P.C. was contested by revisionist. He accordingly filed his objections dated 16.7.2019 denying allegations made in the application. Revisionist also raised additional pleas wherein the factum of marriage of revisionist with opposite party 2 on 7.6.2015 in accordance with Hindu Rites and Customs was admitted. Allegations with regard to additional demand of dowry and commission of physical and mental cruelty upon opposite party 2 on account of failure to fulfil additional demand of dowry were denied. Opposite party 2 is not residing with revisionist on just and reasonable ground. Opposite party 2 is having sufficient means and therefore able to earn Rs.10,000/- per month. Consequently, opposite party 2 is able to maintain herself. Revisionist is a labourer and therefore unable to pay maintenance to opposite party 2 on account of her separate living.
After exchange of pleadings, parties went to trial. Opposite party 2 in support of her case adduce herself as APW-1. However, no documentary evidence was filed by opposite party 2. Revisionist in support of his defence adduce himself as OPW-1. However, revisionist also did not adduce any documentary evidence in support of his defence.
On the pleadings of parties court below for effective adjudication of the case framed following points of determination.
All the points of determination referred to above were decided
in favour of opposite party 2. Court below held that opposite party 2 is the legally wedded wife of revisionist and from their wedlock a girl child was born. Court below further held that opposite party 2 has been living separately from revisionist on account of sufficient cause which is attributable to the conduct of revisionist and his family members. On the basis of material on record court below further held that opposite party 2 does not have sufficient means to support herself or maintain her minor daughter. Court below found that revisionist has sufficient means as is established from oral testimony of opposite party 2. Consequently, it was held that revisionist is liable to pay maintenance to opposite party 2 and minor daughter.
Learned counsel for revisionist contends that impugned order passed by court below is manifestly illegal and without jurisdiction. He further contends that revisionist does not have sufficient means to maintain opposite party 2 and the minor daughter. Court below without considering aforesaid has awarded maintenance in favour of opposite party 2 which is also highly excessive.
Per contra the learned AGA has opposed this application. He contends that impugned order passed by court below is perfectly just and legal. Revisionist has evoked the revisional jurisdiction of this court as provided under Section 397/401 Cr.P.C. Scope of revision is limited and is confined only to a jurisdictional error or material irregularity in exercise of jurisdiction. He has then invited attention of the court to the grounds of revision and on basis thereof, he contends that no ground in the light of above has been taken. Moreover, none of the findings recorded by court below on the points of determination so framed have been specifically challenged. It is thus submitted by learned AGA that once findings have not been challenged the conclusion also cannot be challenged. On the aforesaid premise learned AGA contends that present criminal revision is liable to be dismissed.
Having heard learned counsel for revisionist, learned AGA for State and upon perusal of record the court finds that court below upon evaluation of pleadings and evidence on record has recorded categorical finding that opposite party 2 is legally wedded wife of revisionist. From the wedlock of revisionist and opposite party 2 a girl child was born. Consequently, revisionist is legally and morally bound to maintain his wife i.e. opposite party 2 as well as his minor daughter. It is also an established fact that opposite party 2 along with her minor daughter is residing separately from revisionist on account of reasonable and sufficient cause. Allegations made in the application with
regard to separate living of opposite party 2 were duly proved by opposite party 2 in oral evidence. Inspite of lengthy cross examination of opposite party 2, nothing could be culled out from her to dislodge the fact that opposite party 2 has not been living with revisionist on account of sufficient and reasonable cause. Opposite party 2 in her testimony before court below clearly stated that revisionist is a man of sufficient means having movable as well as immovable property. However, same was disbelieved by court below on the ground that no documentary evidence has been filed by opposite party 2 regarding same. In the absence of any documentary evidence it cannot be believed that revisionist has movable or immovable property. However court below after taking into consideration aforesaid facts concluded that revisionist in his objections as well as in his testimony has clearly admitted that he is a labourer and sustains himself by doing work of a labourer. Placing reliance upon this admission of revisionist court below concluded that revisionist has sufficient means to maintain opposite party 2 and his minor daughter. Maintenance awarded by court below commensurates with status of revisionist. Learned counsel for revisionist has failed to point out that findings recorded by court below are illegal perverse or erroneous. In view of above, since findings recorded by court below remain intact conclusion drawn by court below also cannot be changed.
Since opposite party 2 is legally wedded wife of revisionist and daughter was born from the wedlock of revisionist and opposite party 2 who have been living separately on account of sufficient and reasonable cause coupled with the fact that opposite party 2 has no sufficient means of income to support herself or maintain her minor daughter, no illegality has been committed by court below in passing impugned judgement and order dated 21.11.2020.
In view of discussion made above, revision fails and is liable to be dismissed.
It is accordingly dismissed.
Cost made easy.
Order Date :- 20.7.2021 piyush
3 issues framed by the court
Whether the impugned order awarding maintenance under Section 125 Cr.P.C. suffers from jurisdictional error or material irregularity warranting revision.
Whether the findings of the court below regarding the existence of marriage, separate living, and sufficient means are perverse or illegal.
Whether the maintenance awarded is commensurate with the financial status of the revisionist.
Colour shows how this judgement treated each authority
N/AReferred
2 provisions across 1 enactments
Rajeev Misra
As recorded by the court registry
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