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Dhani Ram vs State Of U.P. And Another on 20 December, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

A. F. R.

Reserved

Court No. – 55

Case :- CRIMINAL REVISION No. – 3890 of 2015

Revisionist :- Dhani Ram

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

Counsel for Revisionist :- Rajendra Singh Parihar

Counsel for Opposite Party :- G.A., Anand Kumar Singh

Hon’ble Ravindra Nath Kakkar,J.

Heard learned counsel for the parties.

This criminal revision has been preferred against the order dated 01.08.2015 passed by the Additional Principal Judge, Family Court, Kanpur Nagar in Misc. Case No. 34 of 2013 (Smt. Chandra Devi Vs. Dhani Ram), under Section 127 Cr.P.C., PS- Swaroop Nagar, District-Kanpur Nagar in which the maintenance allowance of the opposite party no. 2/wife has been enhanced by the trial court from Rs. 300/- to Rs. 4,500/- from the date of order.

Relevant facts of this revision in brief are that opposite party no. 2 Smt. Chandra Devi filed a petition No. 3 of 1991, under Section 125 Cr.P.C. in which the Court below awarded maintenance of Rs. 300/- per month by the judgement and order dated 13.07.1993. The revisionist Dhani Ram (husband) retired from service from Lala Lajpat Rai Hospital, Kanpur Nagar on 30.04.2012 and after retirement he is receiving Rs. 10,000/- pension per month. An application was filed to enhance the maintenance amount from Rs. 300/- per month to Rs. 5,000/- per month. After putting appearance in the petition filed under Section 127 Cr.P.C. on the basis of consent of the revisionist the amount of maintenance was enhanced from Rs. 300/- per month to Rs. 4,500/- per month from the date of order.

It is contended on behalf of learned counsel for the revisionist that the impugned order is illegal and not sustainable in the eye of law as the Court below has not applied its judicial mind. It is further contended that no such consent has been given before the trial court by the revisionist with regard to the enhanced maintenance allowance. It is next contended that opposite party no. 2 (wife) was living with the revisionist alongwith her three sons and their wives as well as one married daughter up to February, 2012 in the servant campus, Lala Lajpat Rai Hospital, Kanpur Nagar and the revisionist had performed the marriage of his all three sons as well as one daughter and maintained her wife and all his family members. It is further contended that before retirement of the revisionist on 30.04.2012, they expelled out the revisionist from the aforesaid servant quarter. Since the aforesaid quarter has not been vacated, the revisionist is not being paid the retiral benefit. It is next contended that at present revisionist is living with her 80 years old mother and the father of the revisionist has died. It is further contended that revisionist retired from the post of Safai Karamchari from L.L.R. Hospital, Kanpur Nagar and except pension he is not having other source of income. It is further contended that revisionist is aged about 63 years and is suffering from heart problem. Hence, he is unable to pay the maintenance allowance of Rs. 4,500/- per month to opposite party no. 2/wife.

In rebuttal the learned counsel for the opposite party no. 2 submits that the wrong arguments has been placed before this Court whereas true fact is that opposite party no. 2 is a legally wedded wife of the revisionist. It is further contended that opposite party no. 2 is living separately from her husband for sufficient cause and she has been neglected and the maintenance to her and her daughter and sons has been refused. Thereafter, she has filed a petition under Section 125 Cr.P.C. in which Rs. 300/- per month in favour of the opposite party no. 2 and Rs. 50/- each for all four minor sons from 02.01.1991 was awarded as maintenance allowance. It is further contended that opposite party no. 2 is residing in her Maika after neglection of her husband (revisionist) and with the help of her parents she is looking after the sons and daughter and now they are married. It is further contended that all the expenditure in their marriage has been incurred by her and members of her parental house. It is further contended that opposite party no. 2 is an old aged lady and is serving as a labour in private factory. It is further contended that neither there is any illegality nor any perversity in the impugned order and the same was passed with the consent of the revisionist and considering the pension of Rs. 10,000/- per month of the revisionist, learned trial court has awarded Rs. 4,500/- per month in favour of the opposite party no. 2 i.e. less than 50% of the earning of the revisionist. It is further contended that the award of maintenance allowance was passed by the court below with the consent of the revisionist but to delay and avoid the impugned order, this revision has been filed and revisionist is trying to resile from the consent which he has undertaken before the court below.

I have considered the arguments raised by both the parties and perused the record.

Before proceeding with the subject, I would like to refer the object and purpose of section 125 Cr.P.C. :-

“A measure on social justice and is specially enacted to protect women and children it provides the speedy remedy for the supply of food, clothing and shelter to the deserted wife, it gives an effect the fundamental rights and natural duties of a man to maintain his wife, children and parents when they are unable to maintain themselves. No doubt under the law the burden is placed in the first place upon the wife to show that the means of her husband are sufficient. The prime consideration is whether wife is in a position to maintain herself in the way, she was used to act the place of her husband.”

In light of the aforesaid legal proposition, it transpires from the record that a petition under Section 125 Cr.P.C. was filed by opposite party no. 2 alongwith her minor sons and daughter in the year 1991. An award of Rs. 300/- to her and Rs. 50/- each to her three minor sons and one daughter was awarded on 13.07.1993 and that order became final. It also transpires that due to insufficient knowledge for the execution of the maintenance award and its enhancement a petition under Section 127 Cr.P.C. filed on 08.04.2013 by the opposite party no. 2 in which the revisionist has filed objection on 07.08.2013 and on the basis of admission of receiving pension Rs.10,000/- per month and consent of the revisionist, the trial court by the impugned order dated 01.08.2015, enhanced the amount from Rs. 300/- to Rs. 4,500/- per month from the date of passing of the order dated 01.08.2015.

It is pertinent to mention that all the sons have become major and they are living with their families and the daughter of the revisionist has already been married and is now living with her in-laws. Only opposite party no. 2 (wife) who is an old aged lady requires maintenance from her husband. No doubt at present husband (revisionist) has retired from class 4th service from the L. L. R. Hospital, Kanpur and it is an admitted fact that his pension is Rs. 10,000/- per month. So from no stretch of imagination, keeping the high rise price in present scenario, the amount of Rs. 4,500/- per month cannot be said to be on a higher scale. The court below after taking consent of the revisionist has awarded less than 50 % of the pension amount an award in favour of the opposite party no. 2.

Keeping the social status, earning of the revisionist and the facts and circumstances of the case, I am of the view that the impugned judgement and order of the court below does not require any interference of this court and this revision is devoid of merit and is accordingly dismissed.

Order Date :- 20.12.2017

AKT

 

 

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