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Manish Singh vs State Of U.P. And Another on 27 March, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Judgment reserved on 07.03.2018

Judgment delivered on27.03.2018

Court No. – 17

Case :- CRIMINAL REVISION No. – 575 of 2015

Revisionist :- Manish Singh

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

Counsel for Revisionist :- Manish Singh

Counsel for Opposite Party :- Govt.Advocate,Amar Nath Tiwari,Ravindra Nath Tiwari

Hon’ble Dinesh Kumar Singh-I,J.

1. This criminal revision has been preferred against the judgment and order dated 19.11.2014 passed by the Principal Judge, Family Court, Varanasi in Misc. Case No.454 of 2013 (Mrs. Vibha Singh vs. Mr. Manish Singh) whereby an amount of Rs.2,000/- per month has been awarded to the opposite party no. 2 by way of interim maintenance and an amount of Rs.1,000/- per month to her minor daughter.

2. In the ground of the revision it is stated that the opposite party no. 2 refused to live with the the revisionist without any sufficient cause or reason although he is willing to take his wife back. She herself deserted, neglected and cruelly treated him. Under section 126 Cr.P.C. the territorial jurisdiction of the present case does not lie at Varanasi. The opposite party no. 2 in the past has been residing at a number of places throughout India like New Delhi, Noida and Guwahti and keeps on changing the city for her residence. The letter dated 14.2.2012 addressed to the revisionist, clearly indicates that she was residing in Noida. She can file case under section 125 Cr.P.C. in Kolkata where revisionist resides, or where the revisionist or the opposite party no. 2 reside or where the revisionist last resided with the opposite party no. 2 i.e. Kolkata. It was incorrect observation made by the court below that the revisionist had given consent to the opposite party no. 2 to file the case under section 13-B of the Hindu Marriage Act wherever she liked which was mentioned by the revisionist in legal notice sent to the opposite party no. 2. The said consent did not relate to the waiving off of jurisdiction in criminal case to be filed by the opposite party no.2. The allegation of cruelty made by the opposite party no. 2 against the revisionist and his family members are baseless which is prima-facie proved from the fact that till date no criminal case has been initiated against him under section 498A IPC or Domestic Violation Act, 2005. Such allegations are unfounded and baseless and have been made with an ulterior motive. On 19.9.2008 a child was born out of their wedlock, but information was not sent to the revisionist or his parents by the opposite party no. 2 or her family members. The father of the opposite party no. 2 never allowed any person from the family of the revisionist to talk to her and kept her whereabouts concealed which clearly suggests that the opposite party no. 2 and her family members are indulging in cruelty towards the revisionist and his family members. The opposite party no. 2 has not approached the court with clean hands because she herself has deserted the revisionist which has given huge mental shock and trauma to the revisionist. They had not allowed him to talk to his daughter even on phone nor did they allow him to meet her. These circumstances have driven him to mental depression which has caused him enormous loss in his professional field of legal practice. Therefore, the prayer is made that the revision be allowed and the impugned order dated 19.11.2014 be set aside. He may be given visitation right to meet his child Ms. Anushka Singh. He has filed an affidavit dated 10.2.2015 in support of his version, against which the opposite party no. 2 has filed counter affidavit dated 28.4.2015 and supplementary counter affidavit dated 14.5.2017. The revisionist has filed rejoinder affidavit dated 6.7.2015.

3. The revisionist in person has argued before this Court and has raised following points for consideration.

4. In respect of jurisdiction of Varanasi Court not being there to entertain an application under section 125 Cr.P.C it is argued that in the address given by the opposite party no. 2 in the counter affidavit, she has clearly stated residential address to be of G.B. Nagar. Attention has been drawn to the Annexure CA-2 to the counter affidavit which is a receipt of Dalphin Kids, Greater Noida where daughter of opposite party no. 2 is studying, in which residential address has been written as F-536, Delta-I which is also an address of Greater Noida which proves that she is staying at Greater Noida. Attention is also drawn towards page-18 of rejoinder affidavit, which is E-ticket of opposite party no. 2, which also shows that she had obtained ticket showing her address of G.B. Nagar. The document at Page-17 of the said rejoinder affidavit is a receipt regarding engaging vehicle from Greater Noida by the opposite party no. 2 which also indicates that she is residing at Noida. Citing these documentary proofs, it is argued that because of her residing at G.B. Nagar, the territorial jurisdiction for filing a case under section 125 Cr.P.C. could not lie at Varanasi.

5. The next argument made is with regard to opposite party no.2 that she herself having deserted the revisionist, which sould deprive her of any maintenance under the aforesaid section. In this regard, attention is drawn towards page-21 of the rejoinder affidavit which is an objection dated 10.11.2014 filed by the opposite party no. 2-applicant in case no. 454 of 2013 (Smt. Vibha Singh vs. Manish Singh) under section 125 Cr.P.C. P.S. Cholapur against the revisionist-opposite party. In this objection, it is mentioned that the brother of the revisionist-opposite party had gone to meet his brother-in-law in Noida and with a view to collecting evidence with a malafide intention, he also visited the house of the opposite party no.2-applicant but did not talk for her ‘Bidai’. In paragraph no. 4 of the said objection, it is mentioned that when the brother of the revisionist-opposite party had visited Noida, he had taken Anushka Singh in his lap and had taken many photographs. Citing this evidence, it was argued by the revisionist in person that the opposite party no. 2 herself admits that the brother of the revisionist had visited her brother’s residence at G.B. Nagar. Thereafter, the revisionist drew the attention of the Court towards page no. 37 of the counter affidavit and has stated that it was false pleading made on behalf of the opposite party no. 2 that the examination of Hindi of his daughter Anushka Singh was to be held on 29.4.2015 because at page-10 of the said counter affidavit she had stated on oath that under the order of High Court dated 8.4.2015, Principal Judge, Family court had passed an order on 24.4.2015 commanding her to produce the minor girl Anushka Singh for meeting with the revisionist, pursuant to which Anushka Singh was to be taken on 29.4.2015 to ‘Shankat Mochan Temple at Varanasi. It was mentioned in the affidavit that Anushka Singh was to appear in the examination in Delhi Public School, Greater Noida on 29.4.2015, therefore, if compliance of the aforesaid order dated 24.4.2015, she had brought Anushka Singh to Varanasi, her examination, which was fixed for 29.4.2015 would be missed and she could be marked absent in the examination. Thus, there was deliberate concealment of date of examination of Anushka Singh, as on the one hand, it was stated that the examination was fixed for 29.4.2014 which is the date mentioned in annexure CA-3 while in the counter affidavit date of examination is mentioned as 29.4.2015. Attention is also drawn by him to paragraph no. 10 of the application filed under section 125 Cr.P.C. in which it is stated that the revisionist had sent a notice for divorce on 21.1.2012 with false allegation which was answered by the opposite party no.2-applicant. The revisionist and his family members had been insulted and deserted the opposite party no.2-applicant. Those letters could be produced, if required. Many calls and messages were also sent by the revisionist and his family members and relatives but to no avail. Attention was also drawn towards page-31 of the rejoinder affidavit, which is an order passed by the Principal Judge, Family Court, Varanasi dated 26.5.2015 in which it was mentioned that the natural guardian of children are their parents, admittedly Smt. Vibha Singh, opposite party no. 2 was residing in Varanasi under the jurisdiction of P.S. Cholapur while the revisionist-opposite party was residing at Kolkata. Drawing attention to the part of this judgment, it was stated that it was absolutely false finding given by the court below which was against the evidence on record. Attention was also drawn towards page-67 (Annexure-7 to the affidavit filed in support of the revision) and it was stated that the said E-mail may be read by the court to understand how he was deprived of meeting his daughter.

6. The opposite party no. 2 was not at all interested in counselling because she straightaway had denied any kind of mediation. Further, he has drawn the attention towards page-8 of the counter affidavit in which in paragraph no.9 it is mentioned that parental house of the opposite party no.2 was in Varanasi where she was born and completed her education. Pointing it out, it was hammered that the opposite party no. 2 was an educated lady and therefore she was not entitled for any maintenance. In this regard, reliance has been placed on several rulings which would be referred at appropriate place, to prove the point that an educated lady who, if , is capable to work and earn, does not make an effort to earn, she shall not be held entitled for maintenance from her husband. Further it is argued that if the opposite party no. 2 resides at Varanasi as per her averment and her daughter has been sent to G.B. Nagar to stay there and receive education at the place of her brother, it would be desirable that custody of the daughter be provided to the revisionist in the interest of child, because it would mean that the opposite party no.2 would not be in a position to look-after her daughter at G.B. Nagar. Attention is also drawn towards Annexure CA-4 to the counter affidavit, the page 39 of which contains the name of Vaibhav Singh son of Bharat Singh as a witness of occurrence which took place on 5.9.2014 at 2.00 P.M. within the jurisdiction of P.S. Cantt. District Varanasi, pursuant to which a criminal case was lodged against the revisionist by opposite party no.2 under sections 323, 504, 506, 363 and 511 IPC and it is stated that the said witness Vaibhav Singh used to accompany the opposite party no.2 all the time, which was objectionable. Further, it is argued that the evidence is on record to the effect that the opposite party no.2 was travelling all over the country and it is not revealed as to from where she was able to meet expenses for such travel, which shows that she herself was financially well-off and does not require any monetary aid. Attention is also drawn towards page 30 of the rejoinder affidavit, which is a judgment of the Family Court, Varanasi in which it is mentioned that during arguments, learned counsel for the applicant-opposite party no.2 had orally prayed that Anushka Singh was a student of Delhi Public School, Greater Noida, therefore, the revisionist-opposite party be directed that he should meet his daughter in Noida or he should pay amount of Rs.20,000/- which would be incurred in bringing her daughter to meet the revisionist. Further, it is recorded in the judgment that when she came to know about the court’s order dated 26.4.2015, she went to Shankat Mochan Temple at Varanasi with Anushka Singh on 29.4.2015 to enable her to meet the revisionist, in which an amount of Rs.13,000/- was spent by her, the payment of which should be directed to be made by the revisionist-opposite party. Referring to this part of the judgment, it is argued that this indicates that the opposite party no. 2 is financially well-placed as she could spend huge amount out of her own pocket.

7. In rebuttal, the learned counsel for the opposite party no.2, Sri Amar Nath Tiwari has drawn the attention to Annexure-B to the affidavit filed in support of the revision at page 34 and 35 which is a legal notice issued by the revisionist to the opposite party no.2 for initiating divorce proceedings under the Hindu Marriage Act, 1955, in which in paragraph no. 7 it is clearly stated that the marriage had irretrievably broken down. The best course of action available was to file a petition under section 13-B of the Hindu Marriage Act, 1955 and that under section 19 of the Hindu Marriage Act, 1955 he had given option to choose the territorial jurisdiction of the Court, where she could file divorce proceedings to be conducted, if she wanted. The reply to this notice was also sent by the opposite party no.2 which is Annexure-3 to the affidavit filed in support of the revision. At this stage, the revisionist had also pointed out that the reply to the said notice was also sent to him from the address of G.B. Nagar, which indicates that she stayed in G.B. Nagar.

8. Lastly, learned counsel for the opposite party no. 2 brought to the notice of the Court that in pursuance of the impugned order, the revisionist was required to make payment of maintenance amount, but he had made payment of the amount due till April 2015 and some more amount, but not the entire amount. This was replied forthwith by the revisionist saying that he had paid Rs.81,000/- till date but he simultaneously admitted that the amount due had become more than of Rs.81,000/- but could not specify the said amount. It was contended by the learned counsel for the opposite party no.2 that this Court vide order dated 16.2.2015 had given interim protection only on condition that the revisionist shall continue to pay the amount awarded by way of interim maintenance and that because of the breach having taken place, the said interim protection would not be treated to be in existence.

9. A perusal of the impugned order indicates that the opposite party no.2-applicant had moved an application dated 6.7.2014 along with affidavit stating therein that the behaviour of the revisionist-opposite party, his mother and family members was full of cruelty and because of their ill treatment she had to return to Varanasi. She has filed an affidavit in respect of her application under section 125 Cr.P.C stating therein that she was being ill treated and was deserted by her husband-revisionist. From the documents which have been appended by her, relationship of husband and wife is fully proved between both the parties. The revisionist-opposite party is fully capable to give maintenance to the opposite party no.2-applicant, he being an advocate in Kolkata High Court who has enough bank balance in Kolkata and other properties as well. He is also having a Nursing Home. The opposite party no.2-applicant is unemployed having no source of income and is fully dependent upon her retired father. Therefore, it is essential to meet her expenses as well as expenses of her daughter, interim maintenance of Rs.20,000/- may be directed to be paid by the opposite-revisionist.

10. From the side of the revisionist-opposite party in his objection dated 10.11.2014, it was mentioned that the opposite party no.2-applicant had no cause of action as she was never ill treated nor was she ever deserted by him. He was still ready to keep her as his wife but she is not ready to live with him. Further it is mentioned that the opposite party no.2 could have filed application under section 125 Cr.P.C. at Kolkata where the revisionist-opposite party resides and there she had resided with him lastly. She keeps of changing place of residence such as Delhi, Noida, Guwahati. From a letter written by the opposite party no.2-applicant dated 14.2.2012 it was evident that she was staying in G.B. Nagar, despite that she has shown her place of residence at P.S. Cholapur wrongly. She has prayed for maintenance to be awarded to her daughter Anushka Singh who is staying at Noida and studying there which makes it clear that Anushka Singh is staying at Noida alone and is being ignored by him. Therefore, he is entitled for being given custody of Anushka Singh. The opposite party no.2-applicant has refused to discharge her duty as a wife and is living in adultery, therefore, she was not entitled to receive any maintenance from him. He had made efforts to bring her back but she never came to live with him. The opposite party no.2-applicant and her father and other family members have many properties at Noida as well as in Delhi and are in strong financial position. It is wrong to say that she has no source of income.

11. After considering the rival contention of the parties, the court below by the impugned order has recorded that it was admitted by both the parties that they were husband and wife and out of their wedlock a daughter was born who was staying in the house of the parents of opposite party no.2-applicant. The opposite party no.2-applicant has clearly stated that she was compelled to stay with her father because of cruel treatment of the family members of the revisionist-opposite party. It was also on record that the revisionist-opposite party was an Advocate in Kolkata High Court having movable and immovable property and was in good financial condition while the opposite party no.2-applicant was unemployed and unable to maintain herself. The contention of the revisionist-opposite party that he wanted to keep the opposite party no.2-applicant as wife but she was not staying away from him deliberately is an issue which can be decided only after evidence is recorded of both the sides and finding given is thereon on merits. Further the court below has recorded that the notice issued by the revisionist-opposite party to the opposite party no.2-applicant dated 21.1.2012 makes it clear that he had given her liberty to file the case anywhere she wanted, hence the revisionist-opposite party had no reason to raise the point of jurisdiction at this stage. It is further recorded that the revisionist-opposite party had produced a pan card belonging to the opposite party no.2-applicant to show that she had sufficient source of income but the court below has discarded the said piece of evidence stating that simply possessing a pan card does not reflect that the opposite party no.2-applicant had sufficient source of income. On the basis of the above analysis, the court has passed the impugned order awarding aforementioned interim maintenance.

12. It may be mentioned here that the arguments which have been raised by the revisionist are misplaced because the arguments which he has raised, except that of jurisdiction, are relevant for final disposal of application under section 125 Cr.P.C. on merits and not for disposal of application for interim maintenance.

13. As regards objection of jurisdiction not being vested in court at Varanasi, reliance has been placed upon the judgment rendered in the case of Vithalrao Damodhar Salve vs. Savitrabai Vithalrao Salve and others, S.C.Cr.R.1987 474, paragraph no. 8 of the said judgment is reproduced herein-below:

“8.There is one more aspect which I must deal with. In the matter, I am ably assisted by Mr. Jadhav, the learned A.P.P that relates to the power of the Magistrate contemplated under Section 125. The language used in Section 125 is to the following effect:

“125.(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 etc.

To whom does this refer to, when the Section says a Magistrate of the first class? Does it mean a Magistrate in whose jurisdiction the beneficiary resides, or does it mean a Magistrate in whose jurisdiction the person against whom such order is claimed, resides? A clue is provided to this question in Section 126 Criminal Procedure Code. It says:

“126.(1) Proceedings under section 125 may be taken against any person in any district–

(a) where he is, or

(b) where he or his wife resides, or

(c) where he last resided with his wife, or as the case may be, with the mother of the illegitimate child.

Prima facie, what should be the forum for a father or a mother is not at all mentioned. Therefore, which is the Magistrate of first class before whom a father or mother claiming against their children must file their application? In fact, the language of Section 125 is such that no formal application is contemplated, but only proof of neglect or refusal has to be given before the Magistrate. Two things, therefore, arise (1) that he must be a Magistrate of the first class and (2) that he must be a Magistrate where any of the beneficiaries should conveniently file an application. Now, let us take an example that the father and mother are residing in Aurangabad and the son from whom they want to claim maintenance resides in remote part of Punjab. Will the father and mother who do not have money for their own maintenance be required to travel to Punjab and file the case before a Magistrate of first class in Punjab? The answer must, obviously, be in the negative. Therefore, just as the law has made a change by bringing in sub-clause (b), the forum where his wife resides as a convenient forum for the wife, we may have to read in it at the same breath, “where his father and mother reside.” It is obvious that the Magistrate intended is one to give relief to the beneficiaries mentioned in Section 125 and harassment is not intended. If the beneficiaries mentioned in Section 125 are required to hunt the person from whom they have to claim maintenance, who may himself be shifting from place to place for service or any other count, it would mean more harassment than a relief to them. In AIR 1963 SC 1521 (Mst. Jagir Kaur and another v. Jaswant Singh), this aspect was considered and Subba Rao, J. in para 5 has clearly told us:

“This in our view, has been designedly done by the Legislature to enable a discarded wife or a helpless child to get the much needed and urgent relief in one or other of the three forums convenient to them. The proceedings under this section are in the nature of civil proceedings, the remedy is a summary one and the person seeking that remedy, as we have pointed out, is ordinarily a helpless person. So the words should be liberally construed without doing any violence to the language.”

On this touchstone, I would not be far from right if I were to hold that the convenient place for filing an application under Section 125, whether it is first, or second or third application, or whether it is an application for enhancement under Section 127, should be regarded as the proper forum and a Magistrate referred to in Section 125 as also the Magistrate referred to in Section 127(1) and (2) must refer to that Magistrate before whom all, or any of the beneficiaries can conveniently file the application. The territorial jurisdiction of Magistrate so far as Section 125 is concerned, cannot be restricted to the convenience of the person against whom an order is claimed, but it must be given a liberal interpretation, of course not causing any violence to the language and must mean any convenient forum approachable by any of the beneficiaries mentioned in Section 125.”

14. It is clear from the above, interpretation of section 125 Cr.P.C that the wife may initiate proceedings under section 125 Cr.P.C. where she resides and that it should be place of convenience for her. In the case at hand, this ruling is fully applicable because the opposite party no.2-applicant has chosen Varanasi to be convenient for her to file proceedings under section 125 Cr.P.C. even if temporarily she had resided at G.B. Nagar. Therefore, the argument in this regard of the revisionist is totally misplaced that it be held that the Family Court, Varanasi had no jurisdiction to entertain the application under section 125 Cr.P.C.

15. The revisionist who has appeared in person has relied upon the judgment passed in Criminal Revision No201 of 2006 Smt. Archana Gupta and another vs. Rajeev Gupta and another, decided on 18.11.2009 by Uttarakhand High Court at Nainital, whereby the order refusing grant of maintenance by the Principal Judge, Family Court Dehradun was upheld because the wife was found employed in a school where she was getting salary of Rs.2200/- per month. He has also relied upon the judgment of Punjab and Haryana High Court at Chandigarh passed in Criminal Misc. No. M-24684 of 2008 (OM), Poonam vs. Mahendra Kumar in which the High Court of Punjab Chandigarh has upheld the lower court’s order declining the objection filed under section 125 Cr.P.C. because it was found that the wife was staying away from the husband without justifiable reason. He has then relied upon the judgment of Delhi High Court passed in Crl. M.C.No.491 of 2009, Sanjay Bhardwaj and others vs. State and another decided on 27.8.2010 wherein the Delhi High Court has held that maintenance should not have been awarded against the husband without prima-facie proof of the husband being employed and on that basis the order of the Metropolitan Magistrate as well as learned Additional Sessions Judge were set aside. He has again relied upon the judgment of Delhi High Court passed in Crl.Rev.P. NO.344 of 2011, Damanreet Kaur vs. Indermeet Juneja and another decided on 14.5.2012, in which Delhi High Court had upheld the order of ASJ who had declined the interim monetary relief to the petitioner by holding that she was well educated lady earning Rs.50,000/- per month and had chosen not to work of her own will though had the capacity to work and find a suitable job for herself. Relying upon the aforesaid judgments, it was emphasised by the revisionist that the opposite party no.2-applicant was an educated lady who could maintain herself by getting a good job but due to her not doing job deliberately and posing that she is unable to maintain herself, she should not be allowed any maintenance. Moreover, she is staying away from the revisionist-opposite party without any justifiable reason.

16. Learned counsel for the opposite party no.2 has relied upon the judgment of this Court passed in State of U.P. vs. Ram Krishna and others, 2013 (2) UPCr.R. 283 where this Court has held that the question of territorial jurisdiction of the court cannot be decided without evidence. Therefore, the order passed by learned Sessions Judge is fully justified and therefore no ground for interference is made out.

17. Whatever points have been raised as mentioned above by the revisionist, are relevant only for deciding the application under section 125 Cr.P.C. on merits which is possible only after the evidence has come on record from both the sides. Therefore, these arguments may not be taken into consideration by this Court.

18. It is settled law that in proceedings under section 125 Cr.P.C the husband may be directed to provide interim relief to the destitute wife or children by way of interim maintenance so that they could survive during the pendency of the proceedings under section 125 Cr.P.C, to contest it on merits. In the case at hand, a very meagre amount has been awarded by the court below as interim maintenance to be paid to the opposite party no.2-applicant by the revisionist-opposite party, which does not require interference by this Court at revisional stage. No infirmity has been found in the impugned order. Hence, the revision deserves to be dismissed and is accordingly, dismissed.

19. Office is directed to return the lower court record to the court below expeditiously with the direction to proceed with the trial expeditiously and decide the case within six months. Interim order, if any, shall stand vacated.

Order Date:-27.3.2018

AU

 

 

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