Dismissed¶34

Vinay Kumar Tripathi v. State of U.P. and Another

Allahabad HC16 Aug 2023CRLR/5373/2022

Case brief

AI extract

What is this about?

Interim maintenance under Protection of Women from Domestic Violence Act, 2005; Section 12 complaint; Section 23 interim maintenance application; Section 29 appeal before Sessions Judge, Kanpur Nagar; Section 2(f) domestic relationship and Section 2(s) shared household; liability of brother-in-law; enhancement from Rs.2,000 to Rs.7,000 per month; husband mentally disabled 80%; father-in-law Juggi Lal Tripathi died 21.10.2022, appeal abated 2.11.2022; gift deed dated 19.7.2018; revisionist Lecturer (Chemistry) salary Rs.65,000 per month; Allahabad High Court criminal revision dismissed 16.8.2023.

What did the court decide?

No relief to the revisionist; the lower Appellate Court's direction to the revisionist to pay Rs.7,000/- per month as interim maintenance stands upheld, and the interim order, if any, stands discharged. ¶34

Vinay Kumar Tripathi Vs State of U.P. and Another — Domestic Violence | Allahabad HC (2023)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the revisionist, being the brother-in-law of opposite party no.2, is liable to pay interim maintenance under the Domestic Violence Act. +2 more

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Court's answer

Since the husband of opposite party no.2 earns no income (mental disability of 80%) and the father-in-law has died, the revisionist, who works as a Lecturer and has a domestic relationship with opposite party no.2, is liable to pay maintenance.

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Ratio / Principle

Opposite party no.2 is admittedly residing with the revisionist in a shared household (the house constructed by the father-in-law), satisfying the definitions of 'domestic relationship' under Section 2(f) and 'shared household' under Section 2(s) of the Domestic Violence Act.

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Key takeaways

The interim maintenance of Rs.7,000/- per month awarded by the lower Appellate Court is not excessive considering the present price index, and the liability was rightly fixed on the revisionist as the only earning member having income from the land belonging to the father-in-law.ratio¶32
There is no illegality or infirmity in the impugned order of the lower Appellate Court and no interference is required; the criminal revision is devoid of merits and liable to be dismissed.ratio¶33

Detailed headnote1 paragraphs

Allahabad High Court (Vipin Chandra Dixit, J.) dismissed Criminal Revision No. 5373 of 2022 filed by Vinay Kumar Tripathi, brother-in-law of the complainant, against the order dated 15.11.2022 of the Sessions Judge, Kanpur Nagar in Criminal Appeal No.148 of 2022, whereby the complainant's appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 was allowed and interim maintenance was enhanced from Rs.2,000/- to Rs.7,000/- per month with liability fixed on the revisionist. Held: opposite party no.2 resides with the revisionist in a shared household within the meaning of Sections 2(f) and 2(s) of the Act; her husband is mentally disabled to the extent of 80% with no income and the father-in-law died on 21.10.2022; the revisionist, working as Lecturer (Chemistry) on a salary of Rs.65,000/- per month and enjoying the father-in-law's house and agricultural land, is the only earning member and liable to pay interim maintenance under Section 23 while the Section 12 complaint remains pending. Rs.7,000/- per month was held not excessive; the revision was dismissed and the interim order discharged.

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Neutral Citation No. - 2023:AHC:164906 Reserved

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Court No. - 79

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Case :- CRIMINAL REVISION No. - 5373 of 2022

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Revisionist :- Vinay Kumar Tripathi Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Sheshadri Trivedi,Ajay Kumar Pandey,Sr. Advocate

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Counsel for Opposite Party :- G.A.,Dheeraj Kumar Singh

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Hon'ble Vipin Chandra Dixit,J.

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Heard Sri Sheshadri Trivedi, learned counsel for the revisionist, learned AGA for the State and Sri Dheeraj Kumar Singh, learned counsel for opposite party no.2, and perused the record.

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This criminal revision has been filed by the revisionist against the judgment and order dated 15.11.2022 passed by Sessions Judge, Kanpur Nagar in Criminal Appeal No.148 of 2022(Smt. Lata Tripathi vs. State of U.P. and others) by which the appeal preferred by opposite party no. 2 was allowed and revisionist was directed to pay Rs.7,000/- per month as interim maintenance to the opposite party no.2.

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Brief facts of the case is that opposite party no.2 had filed a complaint under Section 12 of the Protection to Women from Domestic Violence Act, 2005(hereinafter referred to as 'Domestic Violence Act') against the revisionist and two others who are husband and father-in-law of opposite party no.2. The revisionist is brother-in-law of opposite party no.2. It is alleged in the complaint that the marriage of opposite party no.2 was solemnized with Pramod Kumar Tripathi. Juggi Lal Tripathi is father-in-law of opposite party no.2 and Vinay Kumar Tripathi (present revisionist) is brother-in-law of opposite party no.2. It is alleged in the

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complaint that the marriage of opposite party no.2 was solemnized with Pramod Kumar Tripathi (brother of revisionist) 32 years back and a daughter was born out of wedlock of opposite party no.2 and brother of the revisionist. It is further alleged in the complaint that the husband of the complainant is mentally sick and is unable to earn anything, whereas the father-in-law is a retired teacher and is getting pension of Rs.35,000/- per month and brother-in-law of the complainant (present revisionist) is working as Lecturer (Chemistry) in VNSD Inter College and getting salary Rs.65,000/per month. It is further alleged that father-in-law of the complainant is owner of a large number of agricultural land earning income of around Rs.1,00,000/- per month. It is further alleged that after marriage of the complainant, father-in-law and brother-in-law of the complainant had tortured the complainant and tried to evict the complainant from the house. It is further alleged that father-in-law of complainant is owner of a double-storey house constructed in an area of 297.65 square meter(356 square gaz) and the complainant is provided only one room in that accommodation. Since the husband of the complainant is mentally sick having no income, as such, Rs.20,000/- was claimed as maintenance and also sought share in the house belonging to father-in-law.

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The complaint was registered as Complaint No. 21593 of 2017. During pendency of the complaint, the opposite party no.2/complainant had moved an application under Section 23 of Domestic Violence Act claiming interim maintenance which was allowed by the learned Magistrate vide order dated 7.6.2022. The learned Magistrate has recorded the finding that the husband of the complainant is mentally disabled having no source of income and earning of father-in-law and brother-in-law was proved. The application for interim maintenance was allowed vide order dated

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7.6.2022 directing the husband and father-in-law of the complainant to pay Rs.2000/- per month as interim maintenance to the complainant.

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The complainant/opposite party no.2 had preferred an appeal under Section 29 of the Domestic Violence Act against the order dated 7.6.2022. During pendency of appeal, father-in-law namely, Juggi Lal Tripathi died on 21.10.2022 and the appeal against father-in-law was abated on 2.11.2022. The Appellate Court after considering rival submissions of learned counsel for the parties and on perusal of evidence and material which are available on record, and after considering the disability certificate issued by Medical Board constituted by Chief Medical Officer, Kanpur, recorded a finding that husband of opposite party no. 2 was mentally disabled to the extent of 80%. The lower Appellate Court had also recorded the finding that father-in-law of opposite party no.2 was having a large number of land in village and was getting income from it. The lower Appellate Court had also recorded a finding that husband of opposite party no.2 is earning no income on account of mental disability to the extent of 80%, whereas the brother-in-law of opposite party no.2 is working as Lecturer and getting handsome salary and also earning income from agricultural land, after the death of father-in-law. The lower Appellate Court while allowing the appeal preferred by opposite party no.2 has enhanced the amount of interim maintenance from Rs.2,000/- per month to Rs.7,000/- per month and the liability has been fixed upon the revisionist who is brother-in-law of opposite party no.2.

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It is submitted by learned counsel for the revisionist that the revisionist being brother-in-law of opposite party no.2 is not liable to pay any maintenance under Domestic Violence Act. It is further submitted that opposite party no.2 neither had any domestic

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relationship with the revisionist nor lived together in a shared household as defined under Section 2(s) of the Domestic Violence Act. The house in question was self-acquired property of the father of the revisionist and husband of opposite party no.2 is not having any share in the property. The opposite party no.2 lives separately and is not sharing the same household with the revisionist. The house in question was already gifted by father of the revisionist to the revisionist on 19.7.2018 through registered gift deed. Lastly, it is submitted that the learned Magistrate has rightly passed the order of maintenance against husband and father-in-law and no liability has been fixed by the learned Magistrate upon the revisionist. The lower Appellate Court has committed gross illegality in modifying the order by enhancing the interim maintenance and fixing the liability upon the revisionist.

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On the other hand, learned counsel appearing for opposite party no.2 has submitted that admittedly, the revisionist is brotherin-law of opposite party no.2 and husband of opposite party no.2 is mentally sick and disabled to the extent of 80% and father-in-law of opposite party no.2 died on 21.10.2022. It is further submitted that both the Courts below have recorded the finding that husband of opposite party no.2 is mentally sick and disabled to the extent of 80% earning no income and on the other hand, the revisionist is working as a Lecturer and getting Rs.65,000/- per month and also earning handsome income from agricultural land. The husband of opposite party no.2 is also having 1/3rd share in the house in question but the entire house was gifted by father-in-law to the revisionist. The revisionist is enjoying the entire property i.e. house as well as agricultural land of father-in-law but has failed to maintain opposite party no.2 despite the fact that husband of opposite party no.2 is having 1/3rd share in the entire property.

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Considered the rival submissions of learned counsel for the parties and perused the record. It is admitted fact that the revisionist is brother-in-law of opposite party no.2. The husband of opposite party no.2 is mentally sick and disabled to the extent of 80% and is unable to earn for his livelihood. Father-in-law namely, Juggi Lal Tripathi died on 21.10.2022. The revisionist is working as Lecturer(Chemistry) and is getting salary of Rs.65,000/- per month. Since the husband of opposite party no.2 is earning no income and father-in-law of opposite party no.2 died, the revisionist who is working as Lecturer and having domestic relationship with opposite party no.2, is liable to pay maintenance. It is admitted fact that the revisionist as well as opposite party no.2 both are residing in a same house which was belonging to father-in-law. The domestic relationship is defined under Section 2(f) of the Domestic Violence Act and living in a shared household is defined under Section 2(s) of the Domestic Violence Act, which are quoted hereunder:-

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Section 2(f) in The Protection of Women from Domestic Violence Act, 2005

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(f) "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;

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Section 2(s) in The Protection of Women from Domestic Violence Act, 2005

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(s) "shared household" means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may

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belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household.”

¶32

From bare perusal of definition of 'domestic relationship' as defined under Section 2(f) of Domestic Violence Act, the opposite party no.2 is admittedly residing with the revisionist in a shared household in the house which was constructed by father-in-law of opposite party no.2. Since the husband of opposite party no.2 is earning no income and father-in-law has already died, the revisionist being brother-in-law of opposite party no.2 is liable to pay interim maintenance as awarded by the Court below under Section 23 of Domestic Violence Act whereas the complaint filed under Section 12 of the Domestic Violence Act is still pending before the Magistrate concerned. The amount of Rs.7,000/- as interim maintenance awarded by the lower Appellate Court cannot be said to be excessive in any manner looking the present price index and liability of payment is also rightly fixed upon the revisionist as he is the only earning member having income from the land belonging to father-in-law of opposite party no.2.

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There is no illegality or infirmity in the order impugned passed by the lower Appellate Court and no interference is required. The Criminal revision being devoid of merits, is liable to be dismissed.

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The criminal revision is dismissed accordingly. Interim order, if any, stands discharged. Order Date :- 16.8.2023/P.P.

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Digitally signed by :- POONAM PATEL High Court of Judicature at Allahabad

Vinay Kumar Tripathi v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Vinay Kumar Tripathi v. State of U.P. and Another

Case brief

What is this about?

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