High Court reduced interim maintenance from Rs. 15,000 to Rs. 10,000 per month for a separated wife, reducing arrears accordingly, while directing the lower court to fix final quantum based on the husband's subsequent loss of employment.
Maintenance reduced to Rs. 10,000/month; arrears recalculated; recovery stay subject to compliance.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Neutral Citation No. - 2023:AHC:192806
Court No. - 50
Case :- CRIMINAL REVISION No. - 854 of 2023
Revisionist :- Umashankar Yadav Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Shashi Kant Dwivedi Counsel for Opposite Party :- G.A.,Kedar Nath Mishra with
Case :- APPLICATION U/S 482 No. - 18848 of 2023
Applicant :- Umashankar Yadav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shashi Kant Dwivedi Counsel for Opposite Party :- G.A.,Kedar Nath Mishra
Hon'ble Ram Manohar Narayan Mishra,J.
The present criminal revision is filed against the judgement and order dated 19.1.2023 passed by Additional Principal Judge, Family Court No. 3, Deoria in Maintenance Case No. 1006 of 2014, under Section 125 Cr.P.C. (Pratibha Devi vs. Umashakar Yadav), P.S. Khukhundu, District Deoria whereby learned court court below allowed the maintenance case and awarded Rs. 15,000/- as interim maintenance to the applicant/ respondent no. 2 from the date of filing of application dated 11.6.2023. It is clarified in the impugned order that amount received by the applicant Smt. Pratibha towards ex-parte judgement dated 21.5.2015 or interim maintenance orders dated 4.12.2017, 7.3.2018 shall be adjusted to the amount payable in the final order. The application u/s 482 No. 18848 of 2023 has been filed by the applicant with prayer to quash the impugned order dated 8.2.2023 passed by the Principal Judge, family court, Deoria as well as entire proceedings of Misc. Execution Case No. 177 of 2003 (Pratibha Devi vs. Umashankar Yadav), under Section 128 Cr.P.C., P.S. Khukhundu, District Deoria, pending in the court Principal Judge, Family court, Deoria.
The factual matrix in brief of the case are that the applicant Pratibha filed an application under Section 125 Cr.P.C. on 11.6.2013 with averments that opposite party, Umashankar, who is her husband. Their marriage was solemnized according to Hindu rites and rituals on 21.5.2013. He was is a constable in Indian
Army, 21 Battalion and at the time of filing of application he was posted in Srinagar. His monthly salary is Rs. 20,000/-. He also earns handsome amount from agricultural land; her mother-in-law also is posted as Chief Attendant in Indian Army; father of the applicant had given sufficient gifts and valuables to her husband and in-laws. However, they demanded a Car, which, her father promised to give them at the time of her Vidai (Gauna) ceremony; she was subjected to harassment by her husband just after two months of the marriage. Subsequently, her father and brothers got apprised on 23.6.2022 that her husband has kept another woman just prior to her scheduled Gauna ceremony; her husband withheld her Stridhan after ousting her from matrimonial home and did not provide any maintenance; she lived with her husband only for two months just after her marriage and prior to her scheduled Gauna, which could not be performed.
Learned court below summoned the opposite party. He had filed written statement. Parties adduced oral and documentary evidence. Learned court below appreciated the evidence on record and gave finding of fact to the effect that applicant is legally wedded wife of opposite party. She is living separately from her husband for sufficient reasons. Applicant has stated in her evidence that her husband has contracted second marriage with another girl namely Sunita. He also assailed her character. Learned court below gave finding that applicant is unable to maintain herself. The opposite party has sufficient means to maintain the applicant and provide maintenance to her as salary slip of the revisionist available on record for the month of December, 2020 reveals that he is getting gross salary of Rs. 56,696/-. The applicant is entitled to seek and receive maintenance from her husband to enable her to live with same standard of which she accustomed to live her life when she lived with her husband after the marriage in her matrimonial home. Feeling aggrieved by the impugned orders, instant criminal revision and application are filed by the opposite party- husband of the applicant.
Learned counsel for the revisionist/applicant submitted that amount awarded in the impugned order is excessive and exorbitant. The revisionist has filed a copy of order dated 10.5.2023 issued by DIG Zonal Office, Lucknow Indo Tibbat Border Police Force, Ministry of Home Affairs, Govt. of India, wherein, it is stated that revisionist, who was posted as constable in the ITBP force, has been declared absconder since 26.1.2023 and his pay and allowances are stopped from that date, therefore, he is no longer in services of ITBP force since 26.1.2023. As per
the said order, he is not having any independent source of income after removal from the force and he is not able to pay amount of arrears due to subsequent development. He further submitted that revisionist has also filed application under Section 125 Cr.P.C. for alteration of amount of maintenance awarded in the impugned order due to subsequent development. The revisionist has also filed application u/s 482 No. 30662 of 2018 whereby matter was referred to mediation centre of this Court but mediation failed. The revisionist has also filed application u/s 482 No. 18848 of 2023 challenging the impugned order dated 8.2.2023, wherein, it is stated that applicant has moved an application u/s 128 Cr.P.C. Vide order dated 8.2.2023, following order was passed:-
"Registered. Issue notice of recovery to opposite party. Fix for 9.3.2023. Steps be taken within seven days."
On 4.4.2023 the court below fixed a date for payment. However, the order dated 8.2.2023 is vague as no amount has been shown in that order for which notice of recovery was directed to be issued to the revisionist.
The present respondent has admitted in application under section 128 Cr.P.C. before the court below filed on 8.2.2023 that she has received Rs. 1,49,600/- from opposite party under different heads and Rs. 15,90,400/- is shown as balance as on 8.2.2023. He further submitted that in application under section 125 Cr.P.C., applicant has stated that salary of her husband at that time was Rs. 20,000/per month, therefore, it is unreasonable to award amount of Rs. 15,000/- from the date of filing of application in the impugned order. Learned Principal Judge, family court passed recovery order against the revisionist on 8.2.2023 in Execution Case No. 177 of 2023. Learned court below had mis-appreciated the oral and documentary evidence on record and the impugned order is passed arbitrarily, therefore, impugned order is liable to be set aside.
Per contra, learned counsel for respondent no. 2 submitted that huge amount to the tune of Rs. 15,90,400/- was payable upto January, 2023, which is further increased since February, 2023 to till date and accordingly Rs. 90,000/- is liable to be added in said amount whereas revisionist has paid only Rs. 1,49,600/- towards maintenance to respondent no. 2. The revisionist has also filed application under section 127 Cr.P.C. before the court below and he may be relegated to seek remedy in said application under section 128 Cr.P.C. and no interference is warranted in the impugned order in present revision. As far as the application u/s 482 Cr.P.C. filed by the revisionist is concerned, there is no
illegality or irregularity in the impugned order passed by the court below by issuing notice of recovery to the revisionist as he failed to comply with the impugned order despite any interim or stay order passed by this Court in present revision. He further submitted that apart from his service in ITBP force, he is having sufficient agricultural land to derive income.
From perusal of record, it is admitted position that present revisionist is no longer in service of ITBP force after passing of order dated 19.1.2023 by competent authority. However, impugned order was passed on 10.5.2023. He has been declared absconder since 26.1.2023 therefore, it is presumed that after 26.1.2023 he is not getting salary or allowance from his previous employment as constable in ITBP force. The salary of revisionist, which has been shown for the year 2022 around Rs. 56,000/- per month is not uniform amount, which, he was receiving as salary from 2013 to 26.1.2023 and the applicant has herself admitted in application under section 125 Cr.P.C., which was filed in the year 2013 that her husband was receiving salary to the tune of Rs. 20,000/- per month and this is logical fact that salary could have been increased in course of time by way of annual increment and enhancement in allowances, therefore, this court is of considered view that amount of Rs. 15,000/- as awarded in the impugned order from the date of filing of application in the year 2013 is liable to be reduced to some extent in the light of these facts.
Therefore, it is directed that amount of maintenance awarded in the impugned order of Rs. 15,000/- per month is reduced to Rs. 10,000/- per month, which is payable from the date of filing of application to the date of impugned judgement and order dated 19.1.2023 and arrears will be calculated from 11.6.2013 to January, 2023 accordingly and amount received by the applicant shall be adjusted towards arrears of maintenance according to this modified order and outstanding amount calculated afresh will be payable by the revisionist to the applicant accordingly in five equal monthly installments and first installment will be payable from 10.10.2023 and other installment will be payable in subsequent month.
Learned court below is directed to decide the application under section 127 Cr.P.C. moved by the revisionist within three months from the date of filing of this order and will decide the quantum of maintenance in the light of subsequent facts that revisionist is no longer in service of ITBP but keeping in view other source of income from the date of impugned order dated 19.1.2023 onwards which will be payable. The recovery warrant or any coercive
process issued against the revisionist shall be kept in abeyance provided the revisionist complies with this order in letter and spirit, failing which the court below to issue coercive process against him for recovery of outstanding amount as per this modified order.
The present revision as well as the application u/s 482 Cr.P.C. are hereby disposed off.
Order Date :- 6.10.2023 Dhirendra/
Digitally signed by :- DHIRENDRA KUMAR High Court of Judicature at Allahabad
3 issues framed by the court
Whether the maintenance amount awarded is excessive in light of the petitioner's declaration as an absconder with no current income.
Whether the lower court's order directing recovery of maintenance without specifying the exact amount was illegal.
Whether the impugned order awarding Rs. 15,000 monthly maintenance should be reduced given the petitioner's subsequent loss of employment.
4 provisions across 1 enactments
Umashankar Yadav
Pratibha Devi
State of U.P.
Dhirendra Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
