Dismissed

Nikhil Kumar Jaiswal v. State of U.P. and Another

Allahabad HC13 Dec 2022CRLR/2931/2019

Case brief

AI extract

What is this about?

In this criminal revision, the husband challenged the Family Court order directing him to pay maintenance to his wife and daughter. The High Court held that the lower court's findings were based on admissible evidence and its decision regarding the maintenance amount and commencement date was not perverse or arbitrary. Consequently, the revision was dismissed.

What did the court decide?

The criminal revision was dismissed, affirming the lower court's order directing payment of maintenance.

Nikhil Kumar Jaiswal Vs State of U.P. and Another — Maintenance and Alimony | Allahabad HC (2022)

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Reserved on: 7.4.2022 Delivered on: 13.12.2022

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Court No. - 25

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Case :- CRIMINAL REVISION No. - 2931 of 2019 Revisionist :- Nikhil Kumar Jaiswal Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Abhijeet Singh Counsel for Opposite Party :- G.A.,Anurag Vajpeyi,Praveen Kumar Singh

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Hon'ble Mohd. Aslam,J.

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Heard Sri Abhijeet Singh, learned counsel for the revisionist, Sri S.N. Mishra, learned A.G.A. for the State and Sri Praveen Kumar Singh, learned counsel for the opposite party no.2 and perused the record.

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The instant revision has been preferred by the revisionisthusband against the judgement and order dated 28.5.2019 passed by learned Additional Principal Judge, Family Court, Gautambudh Nagar in Case No.59 of 2016, by which the application under Section 125 Cr.P.C. moved by opposite party no.2-wife was allowed and the revisionist was directed to pay maintenance amount of Rs.8000/- per month to opposite party no.2 and Rs.4000/- per month for his daughter Raina Jaiswal from the date of filing of the application. Feeling aggrieved by it, the revisionist-husband of the opposite party no.2-wife has preferred this revision.

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The brief facts necessary for disposal of this revision is that the marriage of opposite party no.2 Monika Jaiswal was solemnized with revisionist Nikhil Kumar Jaiswal according to Hindu Rites and Rituals on 28.1.2012 at her parent’s house at Mohan Road, Deoria and her father had given gifts as dowry beyond his capacity to the in-laws of opposite party no.2. After marriage, she had gone to her matrimonial home and started living with her husband. The family of her in-laws were not satisfied with the dowry given by her father. As soon as she

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came to her matrimonial home, her husband Nikhil Kumar Jaiswal, mother-in-law, father-in-law and sisters-in-law Abha Jaiswal and Sadhana Jaiswal and brother-in-law Akhil Kumar Jaiswal started demanding Rs.10 lacs and Honda City car from her. Upon which, she stated to them that her father is not in a position to meet their additional demand of dowry, but the revisionist and his family members started beating to opposite party no.2 on petty issues. In this regard, she complained to his father-in-law, on which her husband and member of her in-laws family assured her that he will not do it in future and even after that the revisionist and his family members did not deter from their habits and thereafter her father had taken Rs.1,50,000/- from her brother and given it to the revisionist. The father of opposite party no.2 talked about complaining to the police about it, then the husband of opposite party no.2 took her with him without informing her father to WZ-10A, 2^nd Floor, Titarpur near Tagore Garden Metro Station, Delhi and started harassing to opposite party no.2 in routine manner and forcibly committed rape and unnatural sex with her. On crying, shouting by the opposite party no.2, he used to shut her mouth and threatened to kill her if she raised noise and also told that he would not let anyone know. When the revisionist was objected by the nearby persons after hearing the noise, he took the opposite party no.2 to House No-49, Millenniua Village, Alpha Ist, Greater Noida, District Gautambudh Nagar and revisionist started behaving in cruel and inhuman manner with opposite party no.2 as earlier. Whenever, opposite party no.2 went out of the house, her husband used to beat and say her that until he will get Rs.10 lacs and Honda City car from her father, he will continue torturing like this. The opposite party no.2 kept on tolerating everything and explained many times to revisionist, but despite this, the behaviour of the revisionist was not changed. Though, the opposite party no.2 started working in Visva Bharti School, Greater Noida despite that, there was no change in the behaviour of the revisionist and his family members, whenever her husband used to talk to his parents and sister

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and brother, he used to beat her on their instigation and used to say along with his rest family members that his brother was given a flat of Rs.55 lacs by his brothers-in-law in dowry, but her father gave him nothing. As soon as the opposite party no.2 became pregnant, she was asked to undergo for ultrasound to know sex of foetus, but the doctor refused to tell the sex of foetus. Thereafter, the opposite party no.2 was taken to Gorakhpur where the doctor on examination told the sex of foetus as girl, thereupon, her husband and in-laws forcibly administered her medicine for abortion prescribed by the doctor, but it failed. When her pregnancy was not terminated by administering medicines forcibly, her husband kicked on her abdomen several times to get rid of unborn female child, due to which she was crying in pain and begging for the life of her unborn child, then her in-laws used to abuse and pressurize her to terminate the pregnancy of female child. On which she called her father to her matrimonial home, where her husband threatened him to kill his daughter unless the demands is fulfilled and told him that if he wants her daughter alive, give him Rs.10 lacs. Thereupon, in fear of the life of his daughter, he gave a cheque of Rs.1,50,000/- to the in-laws. On which, her husband after beating her during pregnancy took her to her parental home on 9.2.2014 and left there. On 3.7.2014, she gave birth to a female child named Raina Jaiswal, regarding which she gave information to her husband and in-laws to which they told that they have no relation with her and her daughter and also asked her to live wherever she wants, but they will not keep her with them. The opposite party no.2, in above situation, is residing with his brother at Noida B-47 Hinden Vihar, Sector-49 Noida, District Gautambudh Nagar along with her daughter and the information was given by the opposite party no.2 to her in-laws, but it was told by them that now they have nothing to do with her and her daughter, whether they live or die, as long as, their demands is not fulfilled, they will not keep her with them. The opposite party no.2 came to her brother’s house and started living with her daughter in Noida, about which her husband came to know and

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started threatening to kill her daughter on phone and on 9.2.2016, he came to her house and tried to take away her daughter forcibly after beating her, but neighbours and pedestrians came there, seeing them, he ran away leaving her daughter. An application was given by the opposite party no.2 to Senior Superintendent of Police, Gautambudh Nagar for action in this regard. She along with her daughter has been living in Sector-49, Noida. Her daughter is minor, due to which she has to stay at home to take care of her. The opposite party no.2 is completely dependent on her brother, because the daughter is infant so she can't even go to work for her livelihood, due to which the life of opposite party no.2 is very pathetic and she is undergoing mental agony. The revisionist is Principal of Sungrace Public School, Farinda and gets salary of Rs.80,000/- per month and also earning from tuition, so he earns an income of Rs.20,000/- per month, thus the revisionist earns a total sum of Rs.1,00,000/- per month. There is no other dependent on the revisionist other than the opposite party no.2 and her daughter. So, Rs.50,000/- per month should be given as maintenance allowance from the date of submission of application for nutrition.

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The petition under Section 125 Cr.P.C. moved by opposite party no.2 was contested by revisionist by presenting his written statement wherein he has stated that the application for maintenance is not maintainable as the same has been filed on false and baseless facts with intention to give colour to her case by hiding all the real facts. Whatever allegations regarding beating, cruel treatment, demand of dowry, the source of income of the revisionist in her application are false and are denied. The revisionist is a peace loving person, he never demanded dowry from the opposite party no.2 nor harassed her in respect of dowry etc. She was not kicked out from the matrimonial house. The opposite party no.2 is a short tempered quarrelsome type of woman and used to quarrel with the revisionist and his family members. It is further stated that neither revisionist nor his family members was taking household work from her, she imputed false

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blame on revisionist and his family members to humiliate them. She herself had gone to her parent’s house without any reason and is residing separately by abandoning revisionist, while the revisionist and his family members had gone to take her, but her parents were neither willing to send her back nor had given any reason. The opposite party no.2 studied in English medium, who is in teaching line, who gets a handsome salary from the school and earns a lot of money by teaching separately the tuition, but despite being an educated woman, she does not follow her obligation as wife and earns Rs.35000/- per month from teaching in school and Rs.20,000/- by teaching separate tuition. Thus she earns Rs.55,000/- per month and the daughter of revisionist is separated from opposite party no.2 herself and being kept in Deoria with her parents, due to which the daughter is deprived of the affection of her parents. Whereas opposite party no.2 does not have any legal right to keep the daughter of the revisionist with her parents. The revisionist is ready to maintain her, but the opposite party no.2 has abandoned the revisionist without any reason and the revisionist has been deprived of the happiness of the wife and daughter. Despite persuading by revisionist to the opposite party no.2 and even after making every efforts to live his married life with her, she is not ready to come and live with him. The maternal uncle of the opposite party no.2 is living in District Deoria and the inlaws and revisionist are living in District Gorakhpur, therefore, opposite party no.2 has no right to present the said application under the jurisdiction of lower court at Noida. Neither opposite party no.2, nor her brother or relatives are residing at the address of Noida as shown in her application. The real intention of opposite party no.2 is to harass the revisionist and she is well aware that her real address is Gorakhpur and she has deliberately moved the application in the court at Noida. She has filed the application under Section 125 Cr.P.C. against the revisionist with intention to extorting money illegally, therefore, the application under Section 125 Cr.P.C. moved by opposite party no.2 is liable to be dismissed outrightly.

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In oral evidence, opposite party no.2, Monika Jaiswal (PW-1) was examined and cross-examined in the court and the witness Ashok Kumar was also examined and cross-examined as PW-2 in the court and has filed documentary evidence from List 31Kh to 32Kh/1 to 32Kh/8, attested photocopy of Plaint No.130/2016, demand letter of Amrapali Dream Valley Greater Noida 32Kh/9, list no.34Kh & 35Kh/ 1 to 35Kh/3 certified copy of report of Mahila Thana, 36Kh application, from list 37Kh to 38Kh photocopy of letter of Delhi Scottish School, from list 39Kh to 39Kh/1 to 39Kh/3 photocopy regarding bio-teacher Monika Jaiswal, from list 23Kh to 24Kh/1 to 24Kh/11 photocopy of sale deed dated 30.6.2008, from list 43Kh/1 certificate of Sun Grace Public School, from list 45Kh to 45Kh/7 photocopy of RTI letter of Delhi Scottish School Omega-1, Greater Noida and has closed her evidence.

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The revisionist Nikhil Jaiswal has examined himself as DW-1 and closed his evidence.

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On the basis of pleadings of the parties following points of determination were framed by court below:-

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"1. Whether applicant Monika Jaiswal is married wife of Nikhil Jaiswal and a daughter was born out of the wedlock?

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2. Whether applicant is separately living on sufficient cause?

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3. Whether applicant is not able to maintain herself and her minor child?

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4. Whether the opposite party has sufficient means to maintain his wife and minor daughter?

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5. Whether opposite party has wilfully neglected to maintain the applicants?"

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Learned court below having heard the counsel for both the parties and considering the evidence available on record held that the revisionist is well educated person and was drawing salary of Rs.27,000/- per month from his service and has sufficient means to maintain his wife and minor daughter. It is further held that the revisionist is wilfully neglecting to maintain his wife and minor daughter. It is further held that the opposite party no.2 is residing in Delhi with her brother and revisionist has admitted that he also

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remained in Noida with her while the dispute arose, therefore, the court at Noida has jurisdiction to decide the petition. It is also held that although the wife of revisionist has served in various schools but she has no permanent job to maintain herself and her minor daughter. It is also held that the revisionist has no dependent except his wife and minor daughter and has sufficient means to maintain them. It is further held that the revisionist treated her wife with cruelty and she is living along with her daughter separately on just and reasonable ground. It is also held that the revisionist has wilfully neglected to maintain his wife and minor daughter and has allowed the application under Section 125 Cr.P.C. vide impugned order dated 28.5.2019 and directed the revisionist to pay maintenance amount of Rs.8000/- per month to his wife and Rs.4000/- per month to his minor daughter from the date of presentation of the application.

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It is submitted by learned counsel for the revisionist that the learned court below has wrongly awarded the order of maintenance from the date of filing of the application. It is further submitted that the impugned order dated 28.5.2019 passed by court below is against the evidence on record. It is further submitted that the impugned judgement and order passed against the revisionist is based on surmises and conjectures. It is further submitted that the learned court below has not considered the objection of the revisionist, which does not have territorial jurisdiction to entertain the application under Section 125 Cr.P.C. It is further submitted that the learned court below has failed to consider that the revisionist is teacher on temporary basis and his income is not enough to bear such a huge amount of maintenance. It is also submitted that the learned court below has illegally held that the opposite party no.2 is living separately on just and reasonable ground ignoring the fact that the revisionist is ready to keep his wife and daughter. Therefore, he prayed that the present revision may be allowed.

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Learned A.G.A. and learned counsel for the opposite party no.2 have submitted that it is the admitted fact that the opposite party no.2

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is legally wedded wife of the revisionist and Raina Jaiswal is his minor daughter. It is further submitted that the revisionist has stated that he was getting salary of Rs.27,000/- per month as a teacher and has wrongly said that now he is getting Rs.11,000/- per month because nobody will accept the job in lesser salary. It is also submitted that the revisionist is paying premium of Rs.26,000/annually in LIC. Revisionist has further admitted that at present he has two debit cards, one of SBI and other of PNB. Learned lower court has also held that on the admission of revisionist, his minimum income was adjudged as Rs.27,000 per month. It is also submitted that learned lower court has held that the opposite party no.2 was doing a job on temporary basis, but to take care of her daughter, she left the job and she is unable to maintain herself and her minor daughter as well. It is further submitted that learned lower court after appreciation of evidence held that the opposite party no.2 is living separately with the revisionist on just and reasonable ground. It is further submitted that learned lower court has rightly held that the revisionist has wilfully neglected to maintain his wife and minor daughter. It is further submitted that the findings recorded by the lower court on the points of determination is based on appreciation of the evidence and in above circumstances the findings cannot be said to be without evidence or based on inadmissible evidence, therefore, the instant revision is liable to be rejected.

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I have given thoughtful consideration to the contentions raised by learned counsel for the parties and have gone through the record. So far as the territorial jurisdiction is concerned, the revisionist in his memo of revision has admitted that at present opposite party no.2 is residing at B-47 Hindan Vihar, Sector-96 Noida, District Gautam Budh Nagar. Learned court below has held that the revisionist and opposite party no.2 lastly resided together at Noida, therefore, in above circumstances, it cannot be said that the court at Gautam Budh Nagar has no jurisdiction to entertain the petition. The learned court below has recorded the findings on the points of determination on the

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basis of appreciation of legally admissible evidence and it cannot be said to be perverse or based on no evidence or inadmissible evidence, therefore, no interference is required.

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The jurisdiction of the Court under Section 397 can be exercised so as to examine the correctness, legality or proprietary of an order passed by the trial court or the inferior court, as the case may be. Though the section does not specifically use the expression ‘prevent abuse of process of any court or otherwise to secure the ends of justice’, the jurisdiction under Section 397 is a very limited one. The legality, proprietary or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397, but the scope of a revision under Sections 397/401 of the Cr.P.C. has been succinctly explained in “ Amit Kapoor Vs. Ramesh Chander, (2012) 9 SCC 460” . The relevant portion of the said judgment is reproduced as under:-

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"....Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well- founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative.....”

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In this case, the learned court below has held that the opposite party no.2 and her minor daughter Raina Jaiswal are dependent upon the revisionist. More than 50% of the income of the revisionist, as admitted by the revisionist, was given to him to meet his personal expenses and other voluntary payment.

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In above circumstances, learned lower court has rightly awarded the maintenance amount of Rs.8000/- per month to his wife and Rs.4000/- per month to his minor daughter from the date of

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presentation of the application. While determining the quantum of maintenance, the Hon'ble Supreme Court in “ Jabsir Kaur Sehgal Vs. District Judge Dehradun & Ors., (1997) 7 SCC 7” has held as follows:-

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"8. ... The court has to consider the status of the parties, their respective needs, capacity of the husband to pay having regard to his reasonable expenses for his own maintenance and those; he is obliged under the law and statutory but involuntary payments or deductions. Amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and the mode of life she was used to when she lived with her husband and also that she does not feel handicapped in the prosecution of her case. At the same time, the amount so fixed cannot be excessive or extortionate…"

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In view of the facts and circumstances of the case, I find that the learned lower court has rightly awarded the maintenance allowance from the date of filing of the application in accordance with the provision of Section 125 Cr.P.C., therefore, the impugned order does not suffer from any illegality, perversity or impropriety, which may warrant any interference.

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The instant revision lacks merit and is, accordingly, dismissed .

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Order Date :- 13.12.2022 Anil K. Sharma

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Digitally signed by ANIL KUMAR SHARMA Date: 2022.12.14 10:41:15 IST Reason: Location: High Court of Judicature at Allahabad

Nikhil Kumar Jaiswal v. State of U.P. and Another

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Nikhil Kumar Jaiswal v. State of U.P. and Another

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