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Enhancement of maintenance dismissed, No evidence provided to prove the claim

HIGH COURT OF JUDICATURE AT ALLAHABAD

Case :- CRIMINAL REVISION No. – 2281 of 2011

Revisionist :- Smt. Rekha Rani

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

Counsel for Revisionist :- K.P. Shukla,Mayank Tripathi
Counsel for Opposite Party :- Govt. Advocate

Hon’ble Bharat Bhushan,J.

This revision has been preferred by the revisionist for enhancement of maintenance awarded to her by the order dated 8.3.2011 passed by Principal Judge, Family Court at Moradabad, in Case No. 221/09 of 2007, under Section 125, Cr.P.C., Smt. Rekha Rani v. Dilawar Singh, whereby the maintenance of Rs. 3,000 was awarded to the revisionist from the date of application.

2. Brief facts giving rise to the instant revision are that the marriage of revisionist was solemnised with opposite party No. 2 Dilawar Singh on 2.2.1998 at Moradabad in accordance with Hindu rites. During course of this marriage, Rs. 51,000 cash, one Hero-Honda motorcycle and several other articles of jewellery, etc. were given to the opposite party No. 2 as dowry. Infact the revisionist has estimated that almost Rs. 3 lacs were spent in the performance of the said marriage. Subsequent to this marriage opposite party No. 2, the husband of the revisionist and his family members started raising demand for Rs. 50,000 as additional dowry. She refused to succumb to their pressure. This resulted in her maltreatment. She was repeatedly subjected to cruelty and harassment. Ultimately her husband left the revisionist-wife to her parental home on 12.7.1998 i.e. within six months of her marriage. The husband of the revisionist, the opposite party No. 2, allegedly threatened the family of revisionist that unless demand of Rs. 50,000 was fulfilled he would not take the revisionist-wife back to her matrimonial home.

3. To cut the matter short the dispute between the rival parties could not be resolved despite the intervention of other person including Panchayat. Both the parties initiated Court proceedings.

4. The opposite party No. 2 initiated proceedings under Section 9 of the Hindu Marriage Act and the wife-revisionist initiated criminal proceedings under Sections 498A, 323, 504, 506, IPC and Sections 3/4 of D.P. Act. The dispute even came to the High Court in Criminal Misc. Writ Petition No. 36247 of 2010, Smt. Rekha Rani v. State of UP and Others, and this Court directed the Court below to decide the application under Section 125, Cr.P.C. within six months. Pursuant to the direction of this Court, the Family Court decided the application under Section 125, Cr.P.C. on 8.3.2011 by awarding the maintenance of Rs. 3,000 per month to the revisionist wife. The wife was not satisfied with the quantum of award, therefore, she has preferred the present criminal revision for enhancement of maintenance awarded to her.

5. This Court heard Mr. K.P. Shukla, learned Counsel for the revisionist, learned AGA for the State. Despite sufficient service none appeared for the opposite party No. 2-the husband Dilawar Singh. Therefore, this Court was constrained to peruse the record with the help of learned AGA and learned Counsel for the revisionist.

6. Learned Counsel for the revisionist has claimed that the opposite party is a successful Advocate practising in the Civil Courts earning almost Rs. 30,000 per month. He also owns agricultural land and thereby earns Rs. 15,000 per month from his farm. Therefore, he can very well afford to pay the maintenance of Rs. 10,000 per month.

7. But it is apparent that no specific evidence was produced by the revisionist in the Family Court for determination of earnings of husband. One paper was produced indicating that the opposite party husband had appeared in one criminal case before the Trial Court. Similarly, Khatauni placed on record does not indicate any vast holding which could yield the income of Rs. 15,000 per month from the agriculture. No income tax papers were furnished by the revisionist. It is true that it is very difficult to prove such kind of income especially when one is not paying the income tax. It is also true that some sort of guess work has to be done by the Courts to determine the final award but no hard and fast rule or mathematical formula can be evolved for determination of income of any person particularly if the income cannot be documented. Yet it is incumbent upon the party claiming maintenance to prove the income of the opposite party with reasonable precision failing which it would not be possible for the Courts to award excessive maintenance.

8. The opposite party is said to be practising Advocate in District Courts of Bijnor. It would be very difficult to imagine that he is earning substantial amount in absence of any reasonable evidence and documentation. One cannot fail to notice that, even according to the claim of revisionist, mere failure to fulfil the demand of Rs. 50,000 resulted in matrimonial discord, if the opposite party had been earning almost Rs. 50,000 per month then ordinarily he would not have demanded additional dowry of Rs. 50,000 only.

9. A dowry seeker would ordinarily demand more money to augment his financial health. In any case, it would not be proper for this Court to speculate regarding income of opposite party. Suffice is to say that the revisionist failed to give any evidence to support the claim that her husband was earning almost Rs. 50,000 per month except the bald statements of interested witnesses.

10. In the opinion of this Court claim of revisionist cannot be accepted on the ground that there is little scope under the revisional jurisdiction to upset the finding of the facts especially when there is no illegality, impropriety and perversity in the conclusions of the Court below. Hon’ble Apex Court in Pyla Mutyalamma @ Satyavathi v. Pyla Suri Demudu and Another, reported in III (2011) DMC 795 (SC)=VIII (2011) SLT 557=IV (2011) CCR 315 (SC)=2011 (3) ACR 3538 (SC), has held as under:

“……..it is well-settled that the revisional Court can interfere only if there is any illegality in the order or there is any material irregularity in the procedure or there is an error of jurisdiction. The High Court under its revisional jurisdiction is not required to enter into re-appreciation of evidence recorded in the order granting maintenance; at the most it could correct a patent error of jurisdiction. It has been laid down in a series of decisions including Suresh Mondal v. State of Jharkhand, AIR 2006 Jhar. R 153, that in a case where the learned Magistrate has granted maintenance holding that the wife had been neglected and the wife was entitled to maintenance, the scope of interference by the revisional Court is very limited. The Revisional Court would not substitute its own finding and upset the maintenance order recorded by the Magistrate.

In revision against the maintenance order passed in proceedings under Section 125, Cr.P.C, the Revisional Court has no power to re-assess evidence and substitute its own findings.”

11. I have carefully examined the judgment of the Family Court. The judgment of Family Court does not suffer from any illegality, perversity or jurisdictional error.

12. This criminal revision, therefore, lack merits and is hereby dismissed.

Office is directed to inform the Court below about the order within a fortnight.

Criminal Revision dismissed.

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