Partly allowed

Smt. Sadhana Devi and Another v. State of U.P. and Another

Allahabad HC10 Oct 2023CRLR/896/2023

Case brief

AI extract

What is this about?

High Court allowed a criminal revision against a Family Court order awarding meagre maintenance from the judgment date, enhancing the amount and directing arrears payable from the application filing date based on Supreme Court precedent.

What did the court decide?

Maintenance enhanced to Rs. 3,000 monthly for wife and Rs. 2,000 for minor daughter, payable from date of application; arrears to be paid in 5 installments.

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

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Neutral Citation No. - 2023:AHC:195245

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Court No. - 50

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Case :- CRIMINAL REVISION No. - 896 of 2023

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Revisionist :- Smt. Sadhana Devi And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Sudhir Kumar Agarwal,Saurabh Kumar

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Counsel for Opposite Party :- G.A.,Shiv Vilas Mishra,Vinod Kumar Sharma

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Hon'ble Ram Manohar Narayan Mishra,J.

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Heard learned counsel for the revisionist, learned counsel for the opposite party No.2, learned AGA for the State and perused the material placed on record. Pleadings have already been exchanged between the parties.

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Instant criminal revision has been preferred against the impugned order dated 22.12.2022, passed by learned Principal Judge, Family Court, Sonbhadra in Criminal Misc. No.403 of 2018 (Sadhana and Another vs. Alok Chandra), under Section 125 Cr.P.C., whereby the court below has awarded maintenance to the revisionist and her minor daughter in aggregate Rs.2000/- per month only and that too from the date of judgement.

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The factual matrix of the case are that Smt. Sadhana Devi, who is revisionist in present revision filed an application under Section 125 Cr.P.C. seeking maintenance for herself as well as for her minor daughter, aged around 2 months in the year 2018, with averment that her marriage with opposite party Alok Chandra was solemnized as per Hindu rites and

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rituals on 10.12.2012 in Renukoot and she was send off to her matrimonial home after marriage where she was performing her matrimonial obligations. However, in course of time, the attitude and behaviour of opposite party changed drastically. He used to coerce and torture her due to none giving of sufficient dowry in the marriage by the parents of the applicant. Her in-laws were also supporting her husband in his demand of dowry and ill treatment was meeted out to her by her husband. Her parents-in-law also used to abuse her. On 17.10.2017, her husband was taking her to market by getting her sit on pillion. The applicant fell down from back seat due to rash driving of her husband and suffered head injury. Even then, her husband did not provide her proper medical treatment and instead of getting her admitted in hospital for treatment, he brought her to home after providing her first aid. The couple is blessed with a girl child on 21.5.2018. The opposite party is a Junior Engineer by profession and works at State of Gujarat as Assistant Manager in a private company and his monthly salary is Rs.42,000/- per month whereas the applicant is not skilled and she is not having any independent source of income. Therefore, she claims maintenance for her minor daughter and herself from opposite party. Opposite party appeared before the court below and filed written statement, wherein, he admitted the factum of marriage and birth of the child Diksha from his wedlock with the applicant but refused to have ever subjected her to matrimonial cruelty or torture and stated that he has been victimized by the applicant by filing false cases against him. He has filed

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petition for restitution for conjugal rights on 20.9.2018 before the competent court. The stand of the applicant is that she is an uneducated lady and is unable to earn her livelihood. Learned court below has decided the application of applicant with finding that the applicant is living separately from her husband/opposite party due to sufficient reasons. Learned court below has awarded Rs.15,00/- per month to applicant No.1 and Rs.500/- per month to her minor daughter, with observation that the facts of present case are different from the facts involved in Rajnesh vs. Neha, (2021)2 SCC 324 and for that reason, the applicant cannot be given benefit of the judgement of Hon'ble Apex Court and directed that the maintenance will be awarded from the date of judgement and not from the date of filing of application.

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Per contra, learned counsel for the opposite party No.2 submitted that there is no illegality, irregularity or perversity in the impugned judgement. The revisionist was working in a private company but due to outbreak of Covid-19 he lost his job and he is presently jobless and pursuing the cases filed against him in civil and criminal side by the revisionist-wife. She has not stated in her application under Section 125 Cr.P.C. that she was compelled to leave the company of her husband by him or his family members. She is not entitled to receive maintenance in view of provisions of Section 125(4) of Cr.P.C. as she is living separately from her husband without any sufficient reason. In fact, she refused to live with him and opposite party No.2 himself moved an application for restitution of conjugal rights under Section 9 of the Hindu

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marriage Act, which is pending at present.

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From perusal of record, it appears that the revisionist in her petition under Section 125 Cr.P.C. as well as in her sworn testimony before the court below has levelled the allegations of demand of dowry, maltreatment, torture and cruelty against the opposite party No.2, who is husband. She has also specified the actions when she was subjected to cruelty by her husband as she received head injuries in the accident but she was not given proper medical aid by her husband. She has also stated that she was given beating by her husband often on one and another reason and his parents too instigate him. The revisionist has stated in her application under Section 125 Cr.P.C. that the opposite party was earning Rs.42000/per month from his job in a company situated in State of Gujarat at the time of filing of application for maintenance. The opposite party No.2 is duty bound to maintain his wife and minor daughter, even if he is jobless, as per law laid down by apex court and on the basis of application under Section 125 Cr.p.C. and evidence adduced before the court below, it cannot be aid that the revisionist is living separately from her husband without any sufficient reason. There was clear allegations of matrimonial cruelty against the opposite party No.2 by the revisionist. There is no evidence that the revisionist is having any independent source of income. Even if statement of opposite party No.2 is believed, the amount of maintenance awarded in impugned judgement to the revisionists, which is Rs.1500/- and Rs.500/- per month is a meagre amount and it is not possible for the revisionist to

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maintain themselves by such a meagre amount of maintenance awarded in impugned order. The learned court below has wrongly distinguished the application of applicant from the judgement of Apex Court, which is law of land from. The court below has wrongly observed that directions in that case are not applicable on facts of present case. This approach of court below is astonishing and cannot be countenanced and thus, the court below has not only awarded a meagre amount of maintenance int he case to the revisionists but also wrongly made the order effective from the date of judgement in spite of date of filing of application, as directed by Hon'ble Apex Court in Rajnesh vs. Neha (supra), wherein it is held that maintenance in all cases will be awarded from the date of filing of application for maintenance. A careful and just balance must be drawn between all relevant factors. The test for determination of maintenance in matrimonial disputes depends on the financial status of the respondent, and the standard of living that the applicant was accustomed to in her matrimonial home. The maintenance amount awarded must be reasonable and realistic, and avoid either of the two extremes i.e. maintenance awarded to the wife should neither be so extravagant which becomes oppressive and unbearable for the respondent, nor should it be so meagre that it drives the wife to penury. The sufficiency of the quantum has to be adjudged so that the wife is able to maintain herself with reasonable comfort.

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In petition under Section 125 Cr.P.C., the applicant, who is

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revisionist No.1 in present revision stated in paragraph No.11 that opposite party, who is her husband, is a Junior Engineer in Mendarika Company, Mahsana, Gujarat, where he works as Assistant Manager in maintenance section and his monthly salary is Rs.42000/-. The opposite party filed written statement before the court below on 4.2.2019, wherein he has denied paragraph No.11 of the maintenance petition but has stated nothing regarding his job, occupation and salary. In paragraph No.19 of written statement, he stated that he is private employee. He also bears responsibility of maintaining his parents. He is not having any landed property. The applicant was exerting undue pressure on him to live separately from his old parents. On 10.10.2017, an accident occurred in which the opposite party as well as applicant fell from motorcycle and both of them received injuries. Applicant left her matrimonial home just after the incident after being recovered from therefrom. In present revision also the revisionist has stated in paragraph No.3 of the memo of revision as well as in paragraph No.10 of the affidavit that the opposite party No.2 works as Assistant Manager in Gujarat and his monthly salary was Rs.42,000/- in the year 2013 and now his salary has been increased. In counter affidavit, the opposite party No.2 has only stated that the averments of paragraph No.10 of the affidavit are not correct, hence, denied. Revisionist No.1 has not filed any document in support of income of her husband but he has not specifically controverted the averments of paragraph No.10 of the affidavit regarding his occupation and salary by specific

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averments. In written statement, he has admitted that he works in private concern. Thus, the findings of court below in impugned judgement that the applicant has not filed any cogent document in support of her contention that the opposite party No.2/husband earns Rs.42000/- per month from his job in a company in Gujarat is not accepted. This is settled law of evidence that facts admitted need not to be proved. On the one hand it is the duty of the opposite party No.2 to disclose material facts with regard to his job, employer and present salary on the other hand it is also the responsibility of the applicant to prove the income of the opposite party/husband. Learned court below has observed that in the present age, a healthy and educated young man can earn around Rs.20000/- to 25000/-, per month even that the court awarded paltry amount of maintenance to the applicants at the rate of Rs.1500/- and Rs.500/- per month that too payable from the date of judgement, contrary to the law laid down by the Hon?ble Apex Court.

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Therefore, in the light of aforesaid discussion, it is hereby, directed that the amount of maintenance awarded in impugned judgement and order is liable to be slightly enhanced in the manner that the maintenance awarded to revisionist No.1 Smt. Sadhana Devi is enhanced from Rs.15,00/- to Rs.3,000/- per month and amount awarded to her minor daughter is enhanced from Rs.500/- to Rs.2,000/per month and this modified amount of maintenance will be payable tot he revisionist from the date of filing of application. However, the arrears of maintenance from the

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date of filing of application to the month of September, 2023, will be payable in 5 equal monthly installments within this enhanced rate and the first installment will be payable on 16th November, 2023 onward. Apart from that the opposite party No.2 is directed to pay maintenance at the rate of Rs.3000/and Rs.2000/- per month to the revisionists as stated above, on regular basis from 10th of October, 2023 onwards.

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Accordingly, present criminal revision stands partly allowed .

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Any infraction in compliance of above direction will entail the issuance of coercive process by the court below.

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Order Date :- 10.10.2023 Kamarjahan

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Digitally signed by :- KAMARJAHAN ANSARI High Court of Judicature at Allahabad

Smt. Sadhana Devi and Another v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Smt. Sadhana Devi and Another v. State of U.P. and Another

Case brief

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