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Avtar Singh vs Jagdeep Kaur on 18 December, 2018

Reserved on 14.12.2018
Delivered on 18.12.2018

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Revision No. 01 of 2012

Avtar Singh ….. Revisionist

Versus

Jagdeep Kaur ….Respondent

Mr. M. K. Ray, Advocate for the revisionist.
None present for the respondent.

Hon’ble R.C. Khulbe, J. (Oral)

This criminal revision has been preferred
against the judgment and order dated 19.11.2011
passed by the Judge, Family Court, Udham Singh
Nagar in Misc. Criminal Case No. 100 of 2010,
Jagdeep Kaur vs. Avtar Singh, under Section 125 of
the Code of Criminal Procedure, 1973 (hereinafter to
be referred as ‘the Cr.P.C.’), whereby the learned
Judge, Family Court partly allowed the said
application of respondent and directed the revisionist
to pay maintenance of Rs.2,000/- per month to
respondent w.e.f. 11.05.2010 i.e. from the date of
making the said application.

2. Factual matrix of the case is that the
respondent-Jagdeep Kaur filled an application under
Section 125 of Cr.P.C. with the averments that she
got married to the revisionist on 16.02.2001. After
the marriage, the revisionist used to harass and
torture her for demand of dowry. The revisionist-
Avtar Singh has thrown her away to her parental
2

home from the matrimonial home. The revisionist
also filed a divorce petition against the respondent, in
which it was submitted that the respondent had got
no source of livelihood and she was unable to
maintain herself, whereas the revisionist has three
acres agricultural land, and apart from the
agricultural land, the revisionist also has the business
of selling the milk and was earning Rs. 40,000/- per
month. Therefore, the respondent claimed Rs.
5,000/- per month for her maintenance from the date
of filing the application.

3. The revisionist filed his objection and
submitted that the respondent-Jagdeep Kaur was
suffering from Epilepsy before her marriage and also
suffering mental illness, due to which, she behaved
rudely with her husband and children also. It is also
submitted by the respondent that he is poor person
and living below the poverty line and unable to
maintain the respondent.

4. After hearing both the parties, the learned
Judge family Court, Udham Singh Nagar by its
judgment and order dated 19.11.2011 partly allowed
the maintenance application of the respondent and
awarded Rs. 2,000/- per month for maintenance from
the date of making the said application i.e. from
11.05.2010.

5. Feeling aggrieved present revision
preferred by the revisionist-Avtar Singh.

6. On 03.01.2012 this Court stayed the
operation of the impugned judgment and order dated
19.11.2011 passed by the Judge Family Court,
Udham Singh Nagar, subject to the condition that the
3

revisionist would pay Rs. 1500/- instead of 2,000/- to
the respondent.

7. Heard learned counsel for the revisionist
and perused the record before this Court.

8. Section 125 of Code of Criminal Procedure
is extracted hereunder:-

“125. Order for maintenance of wives,
children and parents. (1) If any person
having sufficient means neglects or refuses to
maintain-

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

(b) his legitimate or illegitimate minor child,
whether married or not, unable to maintain
itself, or

(c) his legitimate or illegitimate child (not
being a married daughter) who has attained
majority, where such child is, by reason of any
physical or mental abnormality or injury
unable to maintain itself, or

(d) his father or mother, unable to maintain
himself or herself, a Magistrate of the first
class may, upon proof of such neglect or
refusal, order such person to make a monthly
allowance for the maintenance of his wife or
such child, father or mother, at such monthly
rate not exceeding five hundred rupees in the
whole, as such Magistrate thinks fit, and to
pay the same to such person as the Magistrate
may from time to time direct:

9. It is admitted fact that the respondent-
Jagdeep Kaur is the legally wedded wife of the
revisionist-Avtar Singh and it is also admitted that
the respondent is living separately in her parental
home since 2009. The revisionist has filed his
objection paper no. 11-C before the lower court in
which he admitted that he dropped the respondent
on 26.03.2009 to her parental home and since then
she is living there and he was not maintaining her.
The respondent in his application and also in her
4

statement categorically stated that she is residing in
her parental home due to the harassment caused by
the revisionist for demand of dowry.

10. The only allegation made by the revisionist
against the respondent-wife that she was suffering
from the disease Epilepsy and she was not mentally
fit. The same statement was given by his son PW-2
Rishav Singh, but the revisionist has failed to produce
any medical evidence about the disease of epilepsy.

11. Presuming it that the respondent is
suffering from epilepsy and is not mentally fit, in
spite of that, it is the duty of the revisionist to
provide her the best medical facility.

12. This Court come to this conclusion that the
revisionist did not provide her even the medical
facility and thrown away her from the matrimonial
home without any sufficient cause. It is very
unfortunate that the respondent did not see the face
of her children since 2009. From the evidence, it is
clear that the respondent is living separately from her
husband with sufficient cause.

13. The learned counsel for the revisionist
argued that the revisionist has no means to maintain
his wife as he is financially weak and living below the
poverty line.

14. The Hon’ble Apex Court in the case of
Shamima Farooqui vs Shahid Khan reported in
(2015) 5 SCC 705 held that a wife has actual
absolute right of maintenance; husband is not
absolved from his obligation to provide maintenance
merely on his plea of financial constraints, so long as
5

he is healthy, able-bodied and capable of earning for
his own support.

15. Grant of maintenance to wife has been
perceived as a measure of social justice if the
husband is physically and mentally sound and in a
position to maintain himself, then he is under an
obligation to support his wife. He cannot be permitted
to plead that he is unable to maintain his wife due to
financially constrains and to absolve his wife from the
right of maintenance.

16. The Hon’ble Apex Court in the case of
Sunita Kachwaha and Others vs. Anil Kachwaha
reported in (2014) 16 SCC 715 held that merely
because wife was earning something, would not be a
ground to reject her claim for maintenance
particularly, when her earnings were not placed on
record below.

17. In this revision, although the revisionist
vehemently argued that the respondent has sufficient
means to maintain herself but no evidence was
produced by the revisionist about her income. A
deserted wife has a right to get maintenance within
the parameters of Section 125 of Cr.P.C., so that she
may live with dignity, as she would have lived in her
matrimonial home, so that she can lead a dignified
life after her desertion by the husband.

18. From the perusal of the record it is clear
that the revisionist had sufficient means to maintain
his wife and it is also proved that the respondent is
living separately in her parental home. The revisionist
refused to maintain her without any sufficient cause
while, the respondent has no means to maintain
6

herself. This Court come to the conclusion that the
lower court has passed the impugned maintenance
order as per law and there is no irregularity or
infirmity found in the impugned order. The findings of
lower court are neither perverse nor erroneous, but
instead, are based on proper appreciation of evidence
on record. Hence the present revision has no force
and liable to be dismissed.

19. Accordingly, the present revision is
dismissed. The judgment and order passed by Judge
Family Court, Udham Singh Nagar in criminal Misc.
application no. 100 of 2010, Jagdeep Kaur vs. Avtar
Singh under Section 125 Cr.P.C. is affirmed. The
revisionist is directed to make payment of the entire
amount of maintenance along with the arrears within
two months from today.

20. Let a copy of this judgment be sent to the
Court below for forthwith compliance.

(R.C. Khulbe, J.)
Balwant

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