Vijay Jaiswal Vs State of U.P. and Another

This criminal revision has been filed by the revisionist under Section 397/401 Cr.P.C. questioning the order dated 12th September, 2024 passed by the Principal Judge, Family Court, Maharajganj Restoration Case No. 80 of 2022 (Vijay Vs. Radhika) under Section 126 (2) Cr.P.C. filed by the revisionist for recall of the ex-parte order dated 2nd February, 2021 passed by the Principal Judge, Family Court, Maharajganj in Maintenance Case No. 524 of 2019 (Radhika @ Manjula Vs. Vijay Jaiswal) under Section 125 Cr.P.C., Police Station-Chowk, Disrtrict-Maharajganj, whereby the trial court while allowing the application under Section 125 Cr.P.C. has directed the revisionist to pay Rs. 4,000/- per month to opposite party no.2 (wife) towards monthly maintenance allowance from the date of filing of instant application. Under the order dated 12th September, 2024, the trial court has rejected the application under Section 126 (2) Cr.P.C. for recall of ex-parte order dated 2nd February, 2021.

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The sole and solitary contention of the learned counsel for the revisionist is that the monthly maintenance allowance as awarded by the trial court under the impugned ex-parte judgment in favour of opposite party no. 2 to the tune of total Rs. 4,000/- per month (total Rs.4,000/- per month) from the date of filing of application under Section 125 Cr.P.C. is too excessive and exorbitant and not commensurate with the net income of the revisionist as he has no permanent job and he is only doing a private job on temporary basis. He then submits that trial court, without any documentary evidence, has only on the

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basis of oral averments made before that since the revisionist being businessman, is having two bighas of agricultural land. He is also engaged in wholesale business of fishes and has a scrap shop and from all these sources he earns a monthly income of Rs. 70,000/-. , has assessed wrong monthly income of the revisionist and has awarded the monthly maintenance allowance in favour of opposite party no.2 under the impugned judgment, which is not correct in the eyes of law.

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On the above premise, learned counsel for the revisionist prays that since the amount of maintenance allowance as awarded by the trial court under the impugned judgment is too excessive and exorbitant and is not in accordance with the guidelines framed by the Apex Court, therefore, the impugned judgment is liable to be set aside.

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On the other-hand, the learned A.G.A. for the State has opposed the submissions made by the learned counsel for the revisionist by submitting that the trial court has not committed any illegality or infirmity in passing the impugned judgment and awarding Rs. 4,000/- per month in favour of opposite party no. 2 from the date of filing of instant application, so as to warrant any interference by this Court in exercise of revisional jurisdiction.

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Besides the above, learned A.G.A. submits that from two bighas of agricultural land, wholesale business of fishes and also from scrap shop, the revisionist being able bodied person, obtains sufficient income, therefore, he is able to maintain his wife and son i.e. opposite party no.2. However, no documentary evidence has been led before the trial court from any side qua the aforesaid income of the revisionist.

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Except the above issue, neither the learned counsel for the revisionist nor the learned counsel for the opposite party no.2 and learned A.G.A. have stated anything else on any other issue.

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Considering the facts and circumstances of the case, submissions made by learned counsel for the parties as well as perusal of record including the impugned judgment, this Court finds that it is an admitted case that the opposite party no. 2 is legally wedded wife of the revisionist and as per the settled law, the revisionist cannot shirk from his pious liabilities for maintaining his legally wedded wife and son.

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So far as separate living of the opposite party no.2 from her husband i.e. revisionist is concerned, the trial court has categorically recorded that the opposite party no.2 is living separately from her husband at her parental house with sufficient cause. In the opinion of the Court, the finding returned by the trial court, while passing the impugned judgment, on the said issue is a

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categorical finding of fact. 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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Qua the income of the opposite party no.2, from the perusal of the impugned judgment, it transpires that there is nothing on record to establish that she is a working lady and she has any source of income in order to maintain herself. The trial court has also opined that opposite party no.2 has no source of income.

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So far as the monthly income of the revisionist is concerned, this Court may record that there is no documentary evidence adduced during the course of trial that the revisionist is, having two bighas of agricultural land, involved in wholesale business of fishes and has a scrap shop from which he receives handsome money. There is also no documentary evidence adduced during the course of trial like salary slip/certificate etc. from which it is established that the revisionist is in a private job and he somehow earns Rs. 10,000/- per month. Without any documentary evidence available on record, the exact monthly income of the revisionist cannot be ascertained. As such, this Court is constrained to assume that the revisionist being an able bodied person works as labourer.

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The Hon'ble Supreme Court of India in the case of Rajnesh Vs. Neha reported in (2021) 2 SCC 324 has opined that since it is the sacrosanct duty of the husband to provide financial support to the wife, the husband is required to earn money even by physical labour, if he is able-bodied, and cannot not avoid his obligation.

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In that circumstance, at the present time, in the opinion of the Court, if the revisionist, who is an able bodied person, is treated as a labourer at present, he would earn Rs. 600/- per day and his monthly income would be Rs. 18,000/- per month.

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The Hon'ble Supreme Court of India in the cases of Rajnesh Vs. Neha (Supra) and Kulbhushan Kumar (Dr) v. Raj Kumari reported in (1970) 3 SCC 129 , has observed that the maintenance allowances can be granted up to the extent of 25% of the net income of the husband. 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,

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nor should it be so meagre that it drives the wife to penury.

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Keeping in view the income of revisionist as well as guidelines issued by the Hon'ble Apex Court in Rajnesh v. Neha and Kulbhushan Kumar (Dr) (Supras) , this court is of the considered opinion that the amount of maintenance allowance fixed by the court below is already in lower side as per the law laid down by the Hon'ble Supreme Court in the aforesaid cases and 25% of Rs. 18,000/- per month would be Rs. 4,500/- per month. As such, Rs. 4,000/- towards total monthly maintenance allowance as awarded in favour of opposite party no. 2 is just reasonable and realistic.

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Consequently, this Court finds that there is no illegality or infirmity in the impugned order passed by the trial court rejecting the application under Section 126 (2) Cr.P.C. as well as in the impugned ex-parte judgment passed under Section 125 Cr.P.C. so as to warrant any interference by this Court in exercise of revisional jurisdiction.

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The present criminal revision is devoid of merit and is, accordingly, dismissed.

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There shall be no order as to costs.

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October 8, 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

Vijay Jaiswal v. State of U.P. and Another

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