Ravindra Maurya vs Mansha Devi And 2 Others on 31 January, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Reserve Judgment

Court No. – 57

Case :- CRIMINAL REVISION No. – 1926 of 2015

Revisionist :- Ravindra Maurya

Opposite Party :- Mansha Devi And 2 Others

Counsel for Revisionist :- Ram Niwas Singh,Km. Divya Ojha,Vinay Kr. Singh Chandel

Counsel for Opposite Party :- Govt.Advocate,Harindra Prasad

Hon’ble Shashi Kant,J.

Heard Sri Ram Niwas, learned counsel for revisionist, learned A.G.A. for the State of U.P. and Sri Harindra Prasad, learned counsel for opposite party nos. 1 and 2.

This criminal revision under Section 397/401 Cr.P.C. has been filed against judgment and order dated 29.04.2015 passed by Principal Judge, Family Court, Mau in Case No. 1398 of 2014 – Mansha Devi Vs. Ravindra Maurya, under Section 127 Cr.P.C. (arising out of Case No. 115 of 1997, under Section 125 Cr.P.C., whereby the revisionist was directed to pay maintenance to the opposite party no. 1 @ Rs.2500/- per month from the date of order and @ Rs.1500/- per month, to opposite party no. 2 from the date of order. Revisionist was further directed to pay Rs.1000/- per month to opposite party no. 2 from the date of application till the date of order and Rs.2000/- per month from the date of order till the date of her marriage. Arrears of maintenance was directed to be paid in five equal installments, at the intervals of three months.

Brief facts as transpire from the record are that opposite party no. 1 Mansha Devi, wife of revisionist filed a Case No. 115 of 1997 under Section 125 Cr.P.C. against the revisionist for grant of maintenance. Which was decided vide order dated 29.08.1998, directing the revisionist to pay maintenance to the opposite party nos. 1 and 2, @ Rs.500/- and Rs.300/- per month, respectively. The revisionist was complying the above order. Meanwhile the opposite party no. 2 filed the above application under Section 127 Cr.P.C. for enhancement of maintenance, before Principal Judge, Family Court, Mau, which was decided vide impugned judgment and order dated 29.04.2015 and the revisionist was directed to pay enhanced maintenancce to opposite party nos. 1 and 2 as stated above. Aggrieved therefrom, the revisionist filed this criminal revision on the grounds mentioned in the memo of revision.

On 27.05.2015, following order has been passed:-

“Heard learned counsel for the revisionist and learned A.G.A. for the State.

Learned A.G.A. has accepted notice on behalf of opposite party no. 3.

Issue notice to opposite party nos. 2 3 returnable at an early date. Steps be taken within a week.

Four weeks time is granted to opposite party nos. 2 3 as well as learned A.G.A. to file counter affidavit. Rejoinder affidavit may be filed within three weeks thereafter.

List thereafter.

However, no coercive action shall be taken against the revisionist during the pendency of the said revision in case the revisionist fulfills the following conditions:

a) As far as the daughter is concerned as she has already attained majority, the effect and operation of the order dated 29.04.2015 passed by Principal Judge, Family Court, Mau in Case No. 1398 of 2014, inasmuch as the daughter is concerned, shall remain stayed.

b) As far as the wife is concerned, the amount of maintenance, which has been enhanced from Rs. 500/- to Rs. 2500/-, from the date of order i.e. 29.07.2015, is modified to the extent that the revisionist instead of Rs. 2500/- shall pay and continue to pay maintenance amount @ Rs. 1500/- per month for the time being.

In case of default in making the payment as specified above, the order granting interim protection, shall stand automatically vacated.”

The learned counsel for revisionist contended that revisionist was paying maintenance to opposite party nos. 1 and 2 in pursuance of earlier order dated 29.08.1998. The Principal Judge, Family Court, Mau vide order dated 29.04.2015 has wrongly and illegally enhanced the amount of maintenance payable to opposite party nos. 1 and 2, by five times, from the date of application without any cogent evidence regarding enhancement of income of the revisionist. Learned counsel for the revisionist also contended that the court below has committed error of law by passing the impugned order because in view of decree of divorce, passed against opposite party no. 1 and the fact of opposite party no. 2 being major, the revisionist was not under liability to pay any maintenance to them, hence, impugned judgment and order passed by the Principal Judge, Family Court, Mau is not sustainable in the eyes of law and is liable to be set aside.

Per contra, learned counsel appearing for opposite party nos. 1 and 2 contended that the revisionist is under liability to pay maintenance to the opposite party nos. 1 and 2. If for the sake of arguments it is assumed that any decree of divorce has been passed against opposite party no. 1, still she is entitled to get maintenance from the revisionist till her re-marriage and despite being major opposite party no. 2 is also entitled to get maintenance from revisionist till her marriage, as has been decided in the cetena of cases. There is no error in the impugned judgment and order and it requires no interference. The revision lacks merit and is liable to be dismissed.

I have considered the rival submissions advanced by learned counsel for parties and perused the record.

In this case following two questions crop up for consideration :

(1) Whether divorced wife is entitled for maintenance till her re-marriage? and

(2) Whether unmarried major daughter is entitled for maintenance?

Admittedly opposite party nos. 1 and 2 are wife and daughter of the revisionist, respectively. Earlier an order dated 29.08.1998 was passed granting maintenance in their favour, which was being complied by the revisionist. Later on an application under Section 127 Cr.P.C. for enhancement of above referred maintenance was filed by opposite party no. 1 which was contested by the revisionist and was decided vide impugned judgment and order dated 29.04.2015 by Principal Judge, Family Court, Mau. For ready reference the relevant portion of the said order is quoted below :

Þbl izdkj lkf{k;ksa }kjk fd;s x;s mijksDr dFku ls Li”V gS fd foi{kh }kjk ;g Lohdkj fd;k x;k gS fd og uydwi foHkkx esa lfoZl djrk gS rFkk 35 gtkj osru ikrk gSA ;kfpuh dh rjQ ls yxHkx 50 gtkj :0 osru ikuk dgk x;k gS fdUrq dksbZ vfHkys[kh; lk{; osru ds laca/k esa miyC/k ugha djk;k x;k gSA foi{kh }kjk fookg foPNsn dk eqdnek djuk rFkk eqdnesa esa fu.kZ; gksus ds mijkUr 2000 esa nwljh ‘kknh djuk rFkk mlls 3 cPps gksuk dgk x;k gS fdUrq fookg foPNsn ds eqdnes ls lacaf/kr dksbZ vfHkys[k lk{; ds :i esa ikoyh ij miyC/k ugha djk;k x;k gSA ;|fi fd ikoyh ij vfHkys[kh; lk{; ds :i ;kfpuh dh rjQ ls ifjokj jftLVj dh Nk;k izfr miyC/k djk;h x;h gS ftlesa Jherh mfeZyk nsoh iRuh jfoUnz xzke dV?kj lnj iks0 tekyiqj ftyk vktex dk uke ntZ gS rFkk vUr ds dkye esa uhjt dqekj ekS;Z] iadt dqekj ekS;Z iq johUnz ekS;Z vafdr fd;k x;k gSA blds lkFk gh vf/k’kklh vfHk;Urk fljlk cka/k iz[k.M ehjtkiqj }kjk fuxZr izek.ki dh QksVks izfr ikoyh ij miyC/k djk;h x;h gS ftlesa mfeZyk nsoh iRuh rFkk dq0 uhyw] uhjt dqekj ekS;Z] iadt dqekj ekS;Z dk uke dze’k% iqh ,oa iq ds :i esa ntZ gS] ftlls foi{kh }kjk nwljh ‘kknh dj ysuk rFkk mlls cPPks iSnk gksus ds dFku dks cy feyrk gSA foi{kh }kjk ;g dFku fd;k x;k gS fd foi{kh ds lkFk mldh ,d fodykax cgu Hkh jgrh gS ftldk Hkj.k iks”k.k foi{kh }kjk gh fd;k tkrk gSA ;kfpuh }kjk vius ftjg esa bl ckr dks Lohdkj fd;k x;k gS fd foi{kh dh ,d cgu fodykax gS tks foi{kh ls NksVh gS ‘kknh gqbZ gS ;k ugha bldh tkudkjh ugha gSA bl izdkj lk{kh ds lk{; ls Li”V gS fd foi{kh uydwi foHkkx esa ukSdjh dj 35 gtkj :0 ekgokj osru izkIr dj jgk gS fdUrq mlds lkFk mldh ,d fodykax cgu Hkh jgrh gS ftlds Hkh Hkj.k iks”k.k dk Hkkj foi{kh ij gh gSA ;g Hkh Li”V gS fd Hkj.k iks”k.k dk vkns’k 1998 esa ikfjr fd;k x;k gS rc ls ifjfLFkfr;ka rFkk eagxkbZ dkQh cny pqdh gSA ,slh fLFkfr esa leLr ifjfLFkfr;ksa dks ns[krs gq, Hkj.k iks”k.k dh /kukjkf’k esa c vkns’k

;kfpuh dh ;kfpdk vUrxZr /kkjk 127 n0iz0la0 Lohdkj dh tkrh gSA foi{kh dks vknsf’kr fd;k tkrk gS fd vkns’k dh frfFk ls ;kfpuh la0 1 dks Hkj.k iks”k.k 500:0 ds LFkku ij 2500:0 ekgokj rFkk ;kfpuh la02 dks vkns’k dh frfFk ls Hkj.k iks”k.k 300:0 ds LFkku ij 1500:0 ekgokj rFkk ;kfpuh la0 2 dh ‘kknh gksus rd izk0i izLrqr fd;s tkus dh frfFk ls vkns’k dh frfFk rd 1 gtkj :0 ekgokj ds fglkc ls rFkk vkns’k dh frfFk ls ‘kknh dh frfFk rd 2 gtkj :0 ekgokj izR;sd ekg dh 29 rkjh[k rd vnk djuk lqfuf’pr djsaA cdk;k /kujkf’k dh olwyh 33 ekg ds vUrjky ij 5 cjkcj fdLrksa esa dh tk;sxhAß

So far as aforesaid two questions regarding payment of maintenance to wife/divorced wife who did not re-marry and major-unmarried daughter of the revisionist are concerned, they both are entitled to get maintenance till their re-marriage and marriage as the case may be. In this regard legal position is well settled.

So far as maintenance to divorced wife till her re-marriage is concerned, I may usefully quote provisions of explanation (b) of sub-Section 1 of Section 125 Cr.P.C., which reads thus :

“125. (1) If any person having sufficient means neglects or refuses to maintain-

(a) his wife, unable to maintain herself, or

(b) ……………

Explanation : (b) “wife” includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.”

Hon’ble Apex Court in Rohtash Singh Vs. Ramendri (Smt) and Others, (2000) 3 SCC 180, in paragraph 10 has observed as under :

“10. Claim for maintenance under the first part of Section 125 CrPC is based on the subsistence of marriage while claim for maintenance of a divorced wife is based on the foundation provided by Explanation (b) to sub-section (1) of Section 125 CrPC. If the divorced wife is unable to maintain herself and if she has not remarried, she will be entitled to maintenance allowance. The Calcutta High Court had an occasion to consider an identical situation where the husband had obtained divorce on the ground of desertion by the wife but she was held entitled to maintenance allowance as a divorced wife under Section 125 CrPC and the fact that she had deserted her husband and on that basis a decree for divorce was passed against her was not treated as a bar to her claim for maintenance as a divorced wife. (See; Sukumar Dhibar v. Anjali Dasi.) The Allahabad High Court also, in the instant case has taken a similar view. We approve these decisions as they represent the correct legal position.”

A similar matter came up before Apex Court in Manoj Kumar Vs. Champa Devi [Special Leave to Appeal (Crl.) No. 10137 of 2015, decided on 06.04.2017], in which a three Judge Bench of the Hon’ble Supreme Court held thus :

“1. We have heard learned Counsel for the rival parties at some length. Having perused the impugned order (Manoj Kumar v. Champa Devi, Cr. MMO No. 230 of 2014. D/d 9.4.2015 (H.P.), we are satisfied, that the same is based on the two decisions rendered by this Court, firstly, Vanamala (Smt.) v. H.M. Ranganatha Bhatta MANU/SC/0756/1995: 1995 (3) R.C.R. (Criminal) 210 : (1995) 5 SCC 299, and secondly, Rohtash Singh v. Ramendri (Smt.) and Ors. MANU/SC/0147/2000 : 2000 (2) R.C.R. (Criminal) 286 : 2000 (3) SCC 180. Section 125 of the Code of Criminal Procedure, including the explanation under Sub-section (1) thereof, has been consistently interpreted by this Court, for the last two decades. The aforesaid consistent view has been followed by the High Court while passing the impugned order.

2. For the reasons recorded hereinabove, we find no justification whatsoever, to interfere with the impugned order, in exercise of our jurisdiction Under Article 136 of the Constitution. The special leave petition is accordingly dismissed.”

So far as issue regarding entitlement of major unmarried daughter for maintenance is concerned, the Hon’ble Apex Court in the case of Noor Saba Khatoon Vs. Mohd. Qasim, AIR 1997 SC 3280, has considered the question Whether the children of Muslim parents are entitled to grant of maintenance under Section 125 Cr.P.C. for the period till they attain majority or are able to maintain themselves, whichever date is earlier, or in the case of female children till they get married. In paragraphs 7, 8 and 10 of the aforesaid judgment the Court has observed as under :

“7. …….Under Section 125, Cr.P.C. the maintenance of the children is obligatory on the father (irrespective of his religion) and as long as he is in a position to do so and the children have no independent means of their own, it remains his obsolute obligation to provide for them…………….. Muslim father’s obligation like that of a Hindu father, to maintain his minor children as contained in Section 125, Cr.P.C. is absolute and is not at all affected by Section 3(1)(b) of the 1986 Act. Indeed a Muslim father can claim custody of the children born through the divorced wife to fulfill his obligation to maintain them and if he succeeds, he need not suffer an order or direction under Section 125, Cr.P.C. but where such custody has not been claimed by him, he cannot refuse and neglect to maintain his minor children on the ground that he has divorced their mother…………

8. ………the obligation of a Muslim father to maintain the minor children is governed by Section 125, Cr.P.C. and his obligation to maintain them is absolute till they attain majority or are able to maintain themselves, whichever date is earlier. In the case of female children this obligation extends till their marriage……….

9. ………………..

10. Thus, both under the personal law and the statutory law (Sec. 125, Cr.P.C.) the obligation of a Muslim father, having sufficient means, to maintain his minor children, unable to maintain themselves, till they attain majority and in case of females till they get married, is absolute, notwithstanding the fact that the minor children are living with the divorced wife.”

In an another case Jagdish Jugtawat Vs. Munju Lata and Others, (2002) 5 SCC 422, relying upon the case of Noor Saba Khatoon (supra), Hon’ble Apex Court has held as under :

“3. ……..A similar question came up for consideration by this Court in the case of Noor Saba Khatoon v. Mohd. Quasim relating to the claim of a Muslim divorced woman for maintenance from her husband for herself and her minor children. This Court while accepting the position that Section 125 Cr.P.C. does not fix liability of parents to maintain children beyond attainment of majority, read the said provision and Section 3(1)(b) of the Muslim Women (Protection of Rights on Divorce) Act together and held that under the later statutory provision liability of providing maintenance extends beyond attainment of majority of a dependent girl.

4. Applying the principal to the facts and circumstances of the case in hand, it is manifest that right of a minor girl for maintenance from parents after attaining majority till her marriage is recognized in Section 20(3) of the Hindu Adoptions and Maintenance Act. Therefore, no exception can be taken to the judgment/order passed by the learned Single Judge for maintaining the order passed by the Family Court which is based on a combined reading of Section 125 Cr.P.C. and Section 20(3) of the Hindu Adoption and Maintenance Act. For the reasons aforesaid we are of the view that on facts and in the circumstances of the case no interference with the impugned judgment/order of the High Court is called for.”

The above judgments of Noor Saba Khatoon and Jagdish Jugtawat (both supra), have also been relied by Rajasthan, Bombay and Allahabad High Courts in Ramavtar Sharma Vs. Smt. Santosh, 2001 CRI. L. J. 2650; Gulabrao Nagorao Ingole Vs. Dwarkabai Gulabrao Ingole, 2010 CRI. L. J. 1471; and Madhusudan Mishra Vs. State of U.P. and Another, 1988 CRI. L. J. 1247, respectively.

In view of above referred settled legal position, opposite party nos. 1 and 2 are entitled for payment of maintenance from the revisionist

Now, I come to the issue of quantum of enhanced maintenance. Principal Judge, Family Court, Mau has held in the impugned judgment and order that revisionist was getting Rs.35,000/- as monthly salary with liability to support his wife, a physically handicapped-unmarried sister and 2-3 children. Presently, the pay of revisionist is also enhanced substantially due to implementation of 7th Pay Commission w.e.f. 01.01.2016. In these circumstances, enhanced maintenance granted to opposite party nos. 1 and 2 at the rate of Rs.2500/- and Rs.1500/- per month, respectively from the date of order in no way can be termed unjust, unreasonable or excessive.

For the aforesaid discussion, I find no error, illegality or infirmity in the impugned judgment and order.

The revision lacks merit and Dismissed accordingly.

Interim order, stands vacated.

Arrears of maintenance, if any, shall be paid in five equal installments, at the intervals of three months.

The Office is directed to certify this order to the court concerned for information and compliance.

Order Date :- 31.1.2018

A. Verma

 

 

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