Vijay Narayan Singh vs State Of U.P. And Anr. on 20 December, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved

A. F. R.

Court No. – 55

Case :- CRIMINAL REVISION No. – 1818 of 2014

Revisionist :- Vijay Narayan Singh

Opposite Party :- State Of U.P. And Anr.

Counsel for Revisionist :- Raghavendra Dwivedi, A.K. Pandey

Counsel for Opposite Party :- Govt. Advocate,Dinesh Mishra

Hon’ble Ravindra Nath Kakkar,J.

Heard learned counsel for the parties.

This criminal revision has been preferred against the judgement and order dated 04.06.2014 passed by Family Court, Kaushambi in Criminal Case No. 125 of 2013, Smt. Mausami Singh Vs. Vijay Narayan Singh, under Section 125 Cr.P.C. allowing Rs. 5,000/- per month to the opposite party no. 2.

Briefly stated facts are that opposite party no. 2 Smt. Mausami Singh is legally wedded wife of the revisionist and marriage was solemnized on 28.02.2008 with Hindu ritual and rites. The revisionist (husband) is an employee in Army. The husband and his family members are not satisfied with the dowry and demanded from her and her family members additional dowry i.e. santro car and golden chain and when the same was not fulfilled, the opposite party no. 2 (wife) was tortured and harassed by her husband and his family members and due to physical cruelty and harassment for illegal demand of dowry, she got mentally disturbed and fell ill. Further, allegation is that she was left by her father-in-laws near Bairagipur and thereafter she called her brother on phone who took her to her Maika. She is unable to maintain herself whereas her husband earns Rs. 20,000/- per month as salary and Rs. 2,00000/- per year from Agriculture. Rs. 10,000/- per month as maintenance was prayed by the wife of the revisionist.

Revisionist (husband) has filed objection against the application under Section 125 Cr.P.C. denying all the allegations of the application and alleged that opposite party no. 2 (wife) has not discharged her conjugal duties and further alleged that she was mentally ill prior to her marriage and this fact has been concealed by her family members at the time of marriage. Her behaviour was abnormal and aggressive. She even attempted to kill him by knife. Further alleged that he medically treated her in Lucknow and Agra mental hospital. It is further alleged that she has not discharged the marital duties but admitted this fact that he is in Army and his salary is Rs. 20,000/- per month.

In support of the application, opposite party no. 2 Smt. Mausami Singh examined herself as PW1 and Shakuntala (mother of the opposite party no. 2) as PW2.

No evidence either oral or documentary has been produced by the revisionist’s (husband) side.

It is contended on behalf of revisionist that impugned judgement and order is against the weight of evidence on record. It is further contended that parents of opposite party no. 2 has concealed the mental ailment of opposite party no. 2. It is further contended that after marriage she was examined by the doctor regularly and when her treatment was going on at Lucknow, she eloped by her parents and gone to her Maika.

Revisionist filed a divorce petition under Section 13 of the Hindu Marriage Act before Family Court, Kanpur Nagar which was decreed ex parte on 02.03.2012. Against the said decree opposite party no. 2 had filed a restoration application under Order IX Rule XIII C.P.C. and thereafter with a mala fide intention just to harass the revisionist the petition under Section 125 Cr.P.C. has been filed. It is further contended that revisionist is ready to keep the opposite party no. 2 as wife in spite of that her mental condition is too serious. It is further contended that revisionist has got the liability of his old mother, father and three unmarried sister and he has no income except the service salary as he is landless person. It is further contended that award of maintenance is too excessive and the maintenance awarded from the date of application and the income of the revisionist has not been proved. Hence, he prayed to set aside the impugned judgement and order dated 04.06.2014.

Per contra learned counsel for the opposite party no. 2 contended that opposite party no. 2 is living in her Maika due to the harassment and torture being given to her by her husband and his family members as illegal demand of a Santro car and 5 tola gold chain has not been fulfilled by her. It is further contended that due to harassment and torture given by her husband and his family members, opposite party no. 2 get shocked and fell ill. It is further contended that revisionist is not eager to revive the marital status which is evident from the fact that he had filed a divorce petition under Section 13 of Hindu Marriage Act before Family Court, Kanpur Nagar and got the ex parte decree. It is lastly submitted that the impugned Judgement and order granting maintenance of Rs. 5,000/- per month to opposite party no. 2 is well reasoned and discussed and in spite of sufficient opportunities afforded to the revisionist to produce oral or documentary evidence before the trial court but the same has not been tendered before the court below. Therefore, this revision lacks merit and is liable to be dismissed.

Before proceeding, I would like to refer the following facts which required to be proved under Section 125 Cr.P.C. for grant of maintenance:-

(1) Legally wedded wife

(2) Unable to maintain herself

(3) Neglect or refusal by husband

(4) Sufficient reason to live separately.

And

(5) Income of the applicant vis a vis non-applicant.

In light of above, I have perused the impugned judgment and order. Perusal of the judgement and order impugned reveals that revisionist (husband) despite sufficient opportunities afforded by the court below neither produced oral nor documentary evidence except medical papers of the treatment of opposite party no. 2 (wife). However, cross-examination has been done from the side of the revisionist before the trial court. The learned court below on the basis of the evidence available on record categorically dealt with the facts which are essentially required to be proved before granting maintenance. The trial court has recorded finding on the basis of the evidence that opposite party no. 2 ( wife) is a legally wedded wife of the revisionist and there is negligence on the part of the husband to maintain his wife and further that there are sufficient cogent reasons to opposite party no. 2 to live separate from her husband and opposite party no. 2 (wife) is unable to maintain herself whereas the revisionist has sufficient means to maintain his wife. So the arguments raised by the learned counsel for the revisionist that impugned judgement is not based on the weight of evidence is not acceptable. At this point of time, it would be relevant to mention that it has come on record that the father of the opposite party no. 2 (wife) had died during the proceedings. Further, it is established that revisionist (husband) filed a divorce petition before Family Court, Knapur Nagar and got ex parte decree in his favour. Against which opposite party no.2 (wife) filed a restoration application under Order IX Rule 13 C.P.C. which is still pending.

The main emphasis from the revisionist side is on the fact that opposite party no. 2 is mentally ill and he got her treated in mental hospital Lukcknow, Agra and Kanpur which is an admitted fact but at this juncture I would like to mention that even a divorced lady is entitled for the maintenance. The facts of this case which transpires from the evidence is that after marriage opposite party no. 2 resided in her in-laws’ house for one and a half year. No doubt her medical treatment was carried on by the husband and in-laws but this fact cannot exonerate the liability to maintain the opposite party no. 2 (wife).

As I have already observed that learned court below has conclusively arrived at the finding that opposite party no. 2 is a legally wedded wife and she has no source of income for her maintenance and there are sufficient reason for living separate from her husband and there is refusal on the part of the revisionist (husband) to maintain her. So with regard to the contention as raised by the learned counsel for the revisionist that maintenance amount of Rs. 5,000/- per month is excessive, I find no force in this contention because in addition to the income from the agriculture, this fact is admitted that revisionist (husband) is serving in Army and his salary is Rs. 20,000/- per month. On the other hand although the opposite party no. 2 is an educated lady and passed Intermediate examination but there is no evidence with regard to her monthly income and it is pertinent to note that it is an admitted fact that she suffers from mental illness. It is moral as well as legal duty on the part of the revisionist (husband) to maintain his wife as he has sufficient source of income to maintain her. One more thing I would like to point out revisionist in para 9 of his affidavit in support of the revision stated that he has old mother, father and three unmarried sisters whereas it transpires from the pleadings and record that all his three sisters are married and they are living with their in-laws. This contradiction itself supports that equity is not in favour of the revisionist in addition to it learned court below considering all the facts and circumstances, economic and social status of the parties and salary of Rs. 20,000/- per month of the revisionist, awarded Rs. 5,000/- per month as maintenance in favour of the opposite party no. 2 (wife).

The next point contended by the learned counsel for the revisionist that court below has awarded the maintenance from the date of application and not from the date of orders.

Perusal of the impugned judgement shows that granting of maintenance award from the date of application, the court below has given specific and categorical reasons. So compliance of Section 125 (2) Cr.P.C. has been done while passing the impugned judgement and order. It has been specifically and categorically stated in the impugned judgement that petition was filed on 09.12.2010 and during pendency of this petition no provision for interim maintenance has been made and no evidence has been tendered to the effect that during the pendency of the petition any cost or maintenance has been afforded to the opposite party no.2 (wife) and keeping the salary of Rs. 20,000/- per month of the revisionist, the trial court has awarded maintenance of Rs. 5,000/- per month from the date of the application.

In view of the aforesaid discussion, I find no good reason to interfere with the finding recorded by the trial court. Accordingly, the revision is dismissed.

Order Date :- 20.12.2017

AKT

 

 

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