Jamuna Prasad Gupta vs The State Of U.P. And Another on 8 November, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

?A.F.R.

Court No. – 17

Case :- CRIMINAL REVISION No. – 4000 of 2015

Revisionist :- Jamuna Prasad Gupta

Opposite Party :- The State Of U.P. And Another

Counsel for Revisionist :- Abha Gupta

Counsel for Opposite Party :- G.A.,Anil Kumar Pathak

Hon’ble Prabhat Chandra Tripathi,J.

Heard Ms. Abha Gupta, learned counsel for the revisionist, Sri Anil Kumar Pathak, learned counsel for the opposite party no.2, learned A.G.A. for the State and perused the material placed on record.

The instant revision has been preferred by the revisionist against the impugned judgment and order dated 07.09.2015 passed by learned court of Additional Principal Judge, Family Court, Kanpur Nagar in Case No. 500 of 2013 (Smt. Binda Devi Gupta vs. Jamuna Prasad Gupta) under Section 125 Cr.P.C., Police Station- Chakeri, District- Kanpur Nagar, whereby learned court of Additional Principal Judge, Family Court, Kanpur Nagar has allowed the petition of petitioner no.1- Smt. Binda Devi Gupta and has dismissed the petition with regard to the petitioner no.2 and has ordered to pay Rs.5,000/- per month maintenance allowance to petitioner no.1 from the date of the judgment.

Aggrieved by the aforementioned judgment and order dated 07.09.2015 passed by learned court of Additional Principal Judge, Family Court, Kanpur Nagar. The instant revision has been preferred by the revisionist -Jamuna Prasad Gupta.

The factual matrix of the case in narrow compass is enumerated as below:-

“The marriage of the revisionist and opposite party no.2 was solemnized according to the Hindu rites on date 17.5.1985. They were blessed with three daughters and one son out of this wedlock. Since the date of the marriage, the revisionist started harassing the opposite party no.2 on the pretext of her ugliness. Opposite party no.2 is a domestic lady and does not have any independent source of income. The revisionist is employed in B.R.D. Air Force Station, Chakeri, Kanpur Nagar and gets Rs.12,000-13,000/- per month as salary. The revisionist is residing with one woman, named, Smt. Suman Gupta at some unknown place and pressurizing the opposite party no.2 to commit suicide.”

The revisionist in his written statement before the learned court of Additional Principal Judge, Family Court, Kanpur Nagar has stated that he was married with opposite party no.2 on date 17.5.1985 and out of this nuptial knot they were blessed with three daughters and one son. Several other facts of adultery were mentioned in the written statement. It has been mentioned in the written statement that opposite party no.2 is living in adultery with Harendra. Several facts were mentioned regarding criminal litigation between both the parties. However, this fact has been mentioned by the revisionist in his written statement that after seeking divorce from the opposite party no.2, he has married with Suman Gupta in the temple of Bara Devi and is residing with Master Shubham, Dr. Jyoti and Pinki whereas opposite party no.2 has left all four children and is living in adultery with Harendra w.e.f. 20.9.2006. There is mention of criminal case in this regard. The learned court of Additional Principal Judge, Family Court, Kanpur Nagar has vividly described documentary and oral evidence adduced on behalf of both the parties and thereafter has framed certain issues for decision of this case. The issues which were framed by learned court of Additional Principal Judge, Family Court, Kanpur Nagar are enumerated as follows:-

(i) Whether opposite party no.2 Smt. Binda Devi Gupta is living in adultery or she has contracted another marriage?

(ii) Whether both the parties are living separately according to their own consents?

(iii) Whether opposite party no.2 Smt. Binda Devi Gupta is unable to maintain herself?

(iv) Whether the revisionist Jamuna Prasad Gupta has sufficient means to maintain his wife-opposite party no.2?

(v) The date of maintenance allowance.

Issue no. (i) – In Case No. 5403 of 2008 Suman Gupta has stated that she is residing with her husband and had denied any kind of conflict with her husband. She is happily leading her married life with her husband. Thus, the charge of adultery has no force.

Now, the revisionist has stated that opposite party no.2 has remarried with Mahendra Gupta on 14.11.2007. To prove this fact, it has been stated that the opposite party no.2 has taken divorce from the revisionist on 13.11.2007 and from the next date i.e. on 14.11.2007 she has contracted a marriage with Mahendra Gupta and the marriage was solemnized at Gayatri Gyan Peeth and it has also been stated by the revisionist that after solemnization of this marriage opposite party no.2 and Mahendra Gupta are residing at Kanpur Nagar and Gorakhpur as husband-wife. It has been mentioned in the impugned judgment and order that Gayatri Gyan Peeth does not perform the rituals of marriage and the learned court of Additional Principal Judge, Family Court, Kanpur Nagar has arrived at this conclusion that the marriage certificate issued in this regard is irrelevant and inadmissible in the evidence. It is a paradox that the revisionist has admitted that he has contracted the second marriage with the wife of Mahendra Gupta and at the same time he is alleging that the opposite party no.2 has contracted the marriage with Mahendra Gupta whereas A.P.W.-2 Mahajan Gupta who is the father of the revisionist has admitted in his cross-examination that the revisionist has falsely blamed the opposite party no.2 Smt. Binda Devi Gupta regarding her marriage with Mahendra Gupta. What else is needed where father of the revisionist himself does not support the case of the revisionist and has categorically denied the fact of remarriage between opposite party no.2 and Mahendra Gupta. There is a mention in judgments of criminal cases in which the complaint case of Suman Gupta filed against Mahendra Gupta was dismissed under Section 203 Cr.P.C.

It is clear that the revisionist has failed to prove this issue.

Issue no.(ii). The revisionist has cited one judgment decided by learned Civil Judge, Unnao under Section 13 of Hindu Marriage Act mentioning therein that both the parties have divorced each other with mutual consent. Although the learned counsel for the opposite party no.2 has denied the knowledge of any such proceedings and has also stated that such decree of divorce has been obtained by playing fraud upon the learned court of Civil Judge, Unnao and enquiry is pending in this regard. Moreover, such fact was not mentioned in the written statement submitted by the revisionist in the year 2010. Moreover, according to Section 125 (1) Cr.P.C. in Explanation (b)- “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

The revisionist has feigned ignorance regarding the identity of the father of her second wife Suman Gupta, named, Jitai Prasad. However, he has accepted before the learned court of Special Chief Judicial Magistrate, Kanpur Nagar that a case under Section 494 I.P.C. was pending against his second wife Suman Gupta presented by her husband Mahendra Gupta.

It is crystal clear that the revisionist has not approached the court with clean hands and the revisionist has tried to deceive the courts at every stage.

Issue no.(iii). As already stated by A.P.W.-2 Mahajan Gupta, who is the father of the revisionist that he is providing the maintenance allowance to his daughter-in-law-opposite party no.2. He gets pension of Rs.8,000/- per month. This clearly establishes that opposite party no.2 is unable to maintain herself.

Issue no. (iv). The revisionist has admitted this fact that he is employed on the post of Technician in B.R.D., Air Force Station, Chakeri, Kanpur Nagar and earns a salary of Rs.12,000-13,000/- per month. Although; in the cross-examination he has admitted that he earns a salary of Rs.20,000/- per month. This clearly proves that he is capable of providing maintenance allowance to his wife.

Issue no. (v). After marshalling the records adduced before the learned court of Additional Principal Judge, Family Court, Kanpur Nagar, the Court has arrived at this conclusion that a sum of Rs.5,000/- per month may be awarded to the opposite party no.2 from the date of the judgment and order.

The revisional jurisdiction does not postulate re-appreciation of evidence, but that should be appreciated in the light of the limitation on the right to go in appeal, Islamuddin v. State, 1975 Cri LJ 841, 842 (Del HC). See also G. Vasudevan v. K.M. Malabari, 1978 Mad LJ (Cri) 617; Bundoo v. Smt. Mahrul Nisa, 1978 All LJ 1002 (All HC).

From perusal of the record, I do not find any factual or legal error in the assessment of evidence by the court below. There is no illegality, perversity and impropriety in the judgment and order dated 07.09.2015 passed by the learned court of Additional Principal Judge, Family Court, Kanpur Nagar. Therefore, the criminal revision is liable to be dismissed on merit.

Resultantly, the criminal revision is dismissed on merits.

Order Date :- 8.11.2017

Atmesh

 

 

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