Pawan vs State of Up and Another

HIGH COURT OF JUDICATURE AT ALLAHABAD

CRIMINAL REVISION No. - 5417 of 2024

Pawan

	Versus	.....Revisionist(s)
State of U.P. and Another		.....Opposite Party(s)
Counsel for Revisionist(s)		: Ken Singh
Counsel for Opposite Party(s)		: G.A.

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Court No. - 91

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HON'BLE MADAN PAL SINGH, J.

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When case is called out in the revised list, no one appears for opposite party no.2despite the fact that notice has already been served upon opposite party no.2 as per the office report dated 18th February, 2025.

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Heard Mr. Ken Singh, learned counsel for the revisionist and the learned A.G.A. for the state as well as perused the record.

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The present criminal revision has been preferred with the prayer to set aside the judgment and order passed by the Additional Principal Judge, Family Court No.1, Agra dated 21st August, 2024 in Case No. 120 of 2020 (Smt. Laxmi Vs. Pawan), under Section 125 Cr.P.C., Police Station-Tajganj, District-Agra whereby the Additional Principal Judge has allowed the application under Section 125 Cr.P.C. filed by opposite party no. 2 and directed the revisionist to pay Rs. 2,000/- per month to opposite party no.2 from the date of filing of the application.

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The contention of the learned counsel for the revisionist is that since the marriage of the revisionist was solemnized with opposite party no.2 on 29th April, 2018 in accordance with the Hindu Rites and Customs, therefore, it has no room to doubt that she is the legally wedded wife of the revisionist. Learned counsel for the revisionist further contends that despite the revisionist is a labourer under MNREGA scheme launched by the Central Government and he somehow earns money for his livelihood, he is ready to maintain his wife i.e. opposite party no.2. However, since the opposite party no.2 has left her

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CRLR No. 5417 of 2024

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matrimonial house and is living separately from her husband at her parental house as she is having illicit relationship with one Devendra who is resident of her parental village. He, therefore, submits that since the opposite party no.2 is living in adultery with one Devendra, as per Section 125 (4) Cr.P.C. she is not entitled to get any maintenance allowance from her husband i.e. revisionist. To buttress the aforesaid submission, learned counsel for the revisionist has referred to the application made by opposite party no.2 on 23rd November, 2019 on the Portal of the Chief Minister, State of Uttar Prdesh at Lucknow (I.G.R.S. Portal), a copy of which has been brought on record at page no.46 of the paper book and he has also referred to the investigation report submitted by the Sub-Inspector, Rajat Kumar Sharma, Chowki Incharge-Ekata, Police Station-Tajganj, District-Agra, which is at page no.48 of the paper book onwards.

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Learned counsel for the revisionist then submits that it is no doubt true that neither the counsel appearing for the revisionist before the trial court has filed the aforesaid documents as documentary evidence nor has cross-examined opposite party no.2 in that regard. However, since the revisionist has stated before the trial court that the opposite party no.2 is living separately, but the trial court while passing the impugned judgment has not considered the cause of separate living of opposite party no.2 from the revisionist in its entirety. On the cumulative strength of the aforesaid, learned counsel for the revisionist states that the impugned judgment and order cannot be legally sustained and is liable to be set aside.

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On the other-hand, learned A.G.A. for the State has opposed the present criminal revision by contending that there is no illegality or infirmity in the judgment passed by the trial court while allowing the instant application of opposite party no.2 under Section 125 Cr.P.C.

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Besides the above, learned A.G.A. submits that since the aforesaid issue raised by the learned counsel for the revisionist before this Court that the revisionist is living in adultery and therefore, she is not entitled to get any maintenance allowance has already been decided by the trial court in favour of opposite party no.2, this Court, therefore, in exercise of revisional jurisdiction cannot adjudicate upon the same again.

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I have considered the facts and circumstances of the case, the arguments advanced by the learned counsel for the parties and have perused the records of the present revision.

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CRLR No. 5417 of 2024

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In the opinion of the Court the issue of living in adultery of opposite party no.2 as alleged by the revisionist is an important issue for deciding the instant application under Section 125 Cr.P.C. Such issue may affect the entire case as set up by opposite party no.2 and same has been defined under Section 125 (4) Cr.P.C., which is quoted here-under:

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“125. Order for maintenance of wives, children and parents.

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4). No wife shall be entitled to receive an allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under this section, if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

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………..”

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Perusal of the aforesaid provision, it is crystal clear that a wife who is living in adultery is not entitled to get any maintenance allowance from her husband.

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Since this issue is the bone of contention in the present case, therefore, it is important for this Court to mention the contents of the application made by the opposite party no.2 dated 23rd November, 2019 on I.G.R.S. portal and the report of the concerned Investigating Officer, which are being recorded hereunder:

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Relevant contents of application

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"Her father Mahendra has five children. She is the eldest daughter among them. In the year 2002, the financial condition of her father Mahendra Singh was pathetic because her father was suffering from heart attack. Her mother had sought help from Devendra, son of Geetam Singh, resident of Gangraubha. Devendra took care of her father. Around that time, Devendra began visiting her house. She was about 16 years old at that time. She fell in love with Devendra. Everyone in the village and her relatives knew about her relationship with Devendra. If she is sent with the revisionist Pawan Kumar

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resident of Nagala Khushiyali forcefully, she would suicide as soon as she reaches there."

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Relevant report of the Investigating Officer

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“As per the applicant's statement (opposite party no.2 herein), she was married to Pawan Kumar, Nagla Khushiyali (revisionist herein), but due to love affair with Devendra, son of Shri Geetam Singh of her own village, she wanted to live with Devendra, on which her family members were not agreeable and because she was married to the revisionist, the family members wanted to send her with the revisionist Pawan but she does not want to go with him. The said case of the applicant (opposite party no.2) is a family case, therefore, she was advised to settle her said case in the Family Counseling Center.”

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From deeper scrutiny of aforesaid contents, prima facie it appears that the submission of the learned counsel for the revisionist has substance.

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It is no doubt true that the said documents have not been produced before the trial court as documentary evidence on behalf of the revisionist nor the counsel appearing for the revisionist has cross-examined opposite party no.2 on that issue before the trial court. However, this Court finds from perusal of the impugned judgment that the trial court has also not adjudicated upon the issue of separate living of opposite party no.2 more deeply.

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This Court has also no room to doubt that since this Court sits in a revisional jurisdiction, it cannot embark upon a re-appreciation of evidence as suggested by the learned counsel for the revisionist. The evidence led before the trial court has been dealt with by the trial court while passing the impugned judgment. Therefore, this Court is of the view that this Court cannot substitute its own finding while exercising its powers under Section 397/401 Cr.P.C.

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However, in the interest of substantial justice, since the issue raised on behalf of the revisionist that the opposite party no.2 is living in adultery. This Court being the higher Court in exceptional circumstances may remand the instant matter before the trial court for deciding afresh as the said issue may affect the entire case set up by the parties before the trial court.

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Consequently, judgment and order passed by the Additional Principal Judge, Family Court No.1, Agra dated 21st August, 2024 in Case No. 120 of 2020 (Smt. Laxmi Vs. Pawan), under Section 125 Cr.P.C., Police Station-

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Tajganj, District-Agra cannot be legally sustained and is liable to be set aside. Accordingly, the same is set aside.

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The Additional Principal Judge, Family Court, Court No.1, Agra is directed to decide the application under Section 125 Cr.P.C. registered as Case No. 120 of 2020 (Smt. Laxmi Vs. Pawan) afresh, in accordance with law and the observation made above, by means of a reasoned and speaking order, after affording opportunity of hearing to both the parties, preferably within four months from the date of production of a certified copy of this order, without giving any unnecessary adjournments to either of the parties, if there is no other legal impediment.

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The present criminal revision is partly allowed.

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September 24, 2025 Sushil/-

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(Madan Pal Singh,J.)

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

Pawan v. State of Up and Another

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Pawan v. State of Up and Another

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