Partly allowed

Smt. Sudha and Another v. State of U.P. and Another

Allahabad HC10 Oct 2023CRLR/2601/2023

Case brief

AI extract

What is this about?

The High Court allowed a revision filing against a Family Court maintenance order, ruling that maintenance must be awarded from the date of application per Supreme Court precedent, and enhanced the wife's monthly maintenance from Rs. 3,000 to Rs. 4,000.

What did the court decide?

Maintenance awarded to wife enhanced from Rs. 3,000 to Rs. 4,000 per month from the date of filing the application.

Smt. Sudha and Another Vs State of U.P. and Another — Maintenance and Alimony | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:195369

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Court No. - 50

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Case :- CRIMINAL REVISION No. - 2601 of 2023

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Revisionist :- Smt. Sudha And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Girish Kumar Yadav Counsel for Opposite Party :- G.A.,Ashok Kumar Singh

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Hon'ble Ram Manohar Narayan Mishra,J.

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The present criminal revision is filed against the judgement and order dated 2.3.2023 passed by learned Principal Judge, Family court, Hapur in Maintenance Case No. 255 of 2017 (Smt. Sudha and another vs. Rakesh), under Section 125 Cr.P.C., P.S. Simbhawali, District Hapur whereby learned court below has awarded Rs. 3,000/- per month as interim maintenance to the applicant no. 1 and Rs. 2,000/- per month to her minor daughter, Km. Pari from the date of order. The amount awarded to minor daughter of the applicant is payable to her till attainment of majority. Feeling aggrieved by the impugned order, the applicant filed present revision under Section 397/401 Cr.P.C., however, same is maintainable under Section 19(4) of Family Court Act, 1984, which itself provides that correctness, illegality or propriety of any order passed by the family court under Chapter IX of Cr.P.C. will be reviseable before the High Court, not being an interlocutory order, except aforesaid no appeal or revision shall lie to any court from any judgement, order or decree of a family court, therefore, revision stood under section 19(4) of Family Court Act.

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In present revision, the revisionists, who are original applicants before the court below, have claimed that maintenance amount must have been awarded from the date of filing of application and not from the date of order/judgement pursuant to direction of Hon'ble Apex Court in Rajnesh vs. Neha and amount of maintenance is liable to be enhanced from Rs. 5,000/- per month to Rs. 30,000/- per month keeping in view the needs of revisionists and resources of the respondent no. 2.

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Heard learned counsel for the revisionists, learned counsel for respondent no. 2 and learned AGA for the State.

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Learned counsel for the revisionists submitted that revisionist has filed a petition u/s 125 Cr.P.C. before the court below seeking maintenance under section 125 Cr.P.C. The revisionist no. 1 is wife of respondent no. 2 and revisionist no. 2 is minor daughter, who born out of wedlock of revisionist no.1 and respondent no. 2. The revisionist no. 1 got separated from her husband alongwith minor daughter since 24.6.2015 whereas their marriage was solemnized on 24.2.2004 according to Hindu rites and rituals. Father of revisionist has spent seven lakh in the marriage. The respondent no. 2 and his family members, who are in-laws of revisionist no. 1, began to harass her due to non fulfillment of additional demand of dowry. They used to torture her due to which she got ailment. The respondent no. 2 entered into marital alliance with some other lady without taking divorce from revisionist no. 1. She is

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passed out of class-8. She is not having any source of income. She is unable to maintain herself and her minor daughter whereas her husband is having 40 Bigha land in Sorakha, Noida, 6 Bigha in Bhowapur, 5 Bigha in Haroda and 16 Bigha in Dholpur. He also runs a dairy from which, he earns Rs. 02 lakh per month. Learned court below issued summon to the opposite party in proceeding u/s 125 Cr.P.C. He appeared and filed written statement. The applicant no. 1 filed progress report of her daughter, who is studying in Balaji Vidyapeeth Public School and extract of Khatauni of land held in the name of father of respondent no. 2. The application was filed by the revisionists for seeking outstanding amount of interim maintenance as awarded in the proceeding u/s 12 of Domestic Violence Act with the photograph of the house bearing name plate of father of respondent no. 2. Both parties adduced their evidence in respect of their case and accordingly court below gave finding to the effect that opposite party Rakesh has refused and neglected to maintain the applicants. The applicant no. 1 living separately from her husband due to sufficient reason. The divorce petition u/s 13 of Hindu Marriage Act has also been filed by the opposite party against the applicant no. 1. She is presently residing at her parental place. Rs. 1,500/ has been awarded as interim maintenance in proceeding under section 12-D of the Domestic Violence Act to the applicant no. 1. Learned court below has concluded that apart from the said amount of Rs. 1,500/- per month, the applicant no. 1 is awarded Rs. 3,000/- and for applicant no. 2 is Rs. 2,000/- per month as interim maintenance in proceeding u/s 125 Cr.P.C., which is payable from the date of judgement and order.

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Learned counsel for the respondent no. 2 submitted that amount awarded in the impugned order needs no enhancement keeping in view the economic resources of respondent no. 2, who works as a driver and is not having any regular employment. 40 Bigha land was held by father of respondent no. 2 in his name and who died in the year 2022 and after death of his father, said 40 Bigha land was partitioned between the applicant and three brothers. Learned court below has rightly awarded the said maintenance from the date of judgement as revisionist has already been receiving interim maintenance to the tune of Rs. 1,500/- per month pursuant to order dated 17.2.2020 passed by learned Judicial Magistrate in complaint case no. 1159 of 2017 and for that reason, the maintenance has been awarded in present case from the date of judgement/ order.

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Learned counsel for the revisionist submitted that only Rs. 2,000/- has been provided to the revisionist no. 1 by the respondent no. 2 in compliance of said interim maintenance order passed in proceeding u/s 12 of Domestic Violence Act and he has moved an application for being provided remaining amount of Rs. 30,500/- before the court below. He further submitted that respondent is having sufficient source of income to provide reasonable amount of maintenance and amount awarded in the impugned order is not conducive to the needs of revisionists.

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Considering the rival submissions of learned counsel for the parties, materials on record, evidence adduced by the parties in proceeding before the court below, this Court is of considered opinion that court below has committed legal error in the impugned order while granting maintenance from the date of judgement and order except awarding the same from the date of filing of application, which is prima facie in Violation of the direction of Hon'ble Apex

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Court in Rajnesh vs. Neha, wherein, it is categorically held that maintenance in all cases will be awarded from the date of filing of application for maintenance and where claims for maintenance are made by the parties under different statutes, the court would consider and adjust of said amount awarded in the previous proceeding and will determine whether any further amount is to be awarded in the subsequent proceedings. It is mandatory for the applicant to disclose the previous proceedings and order passed therein in subsequent proceeding.

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Accordingly, it is hereby directed that amount of maintenance awarded in the impugned order is enhanced from Rs. 3,000/- to Rs. 4,000/- per month to the applicant no. 1 keeping the amount awarded to the applicant no. 2 intact and same will be awarded from the date of filing of application in pursuance of the judgement of Hon'ble Apex Court in Rajnesh vs. Neha. This amount will be in addition to amount awarded in proceeding u/s 12 of Domestic Violence Act as observed in the impugned order.

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Revision stands partly allowed accordingly.

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Order Date :- 10.10.2023 Dhirendra/

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Digitally signed by :- DHIRENDRA KUMAR High Court of Judicature at Allahabad

Smt. Sudha and Another v. State of U.P. and Another

Case brief

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Smt. Sudha and Another v. State of U.P. and Another

Case brief

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