HIGH COURT OF JUDICATURE AT ALLAHABAD ?Reserved Court No. - 41 Case :- CRIMINAL REVISION No. - 2796 of 2009 Petitioner :- Mahesh Babu Respondent :- State Of U.P. & Another Petitioner Counsel :- Nisar Uddin,Arvind Kumar Srivastava Respondent Counsel :- Govt. Advocate,H.M. Srivastava,Neeraj Srivastava Hon'ble Rajesh Chandra,J.
This criminal revision has been filed by Mahesh Babu-husband of the opposite party No.2 impugning the judgment and order dated 29-06-2009 passed by the Judicial Magistrate, Konch, Jalaun at Orai, by which the learned Magistrate enhanced the amount of maintenance from Rs. 500/- to Rs.4,500/- as payable to Smt. Hans Mukhi alias Hemlata, opposite party No.2 in this revision.
The facts, as are discernible from the papers filed in this revision, in brief, are that in Criminal Case No. 9/93, Smt. Hans Mukhi alias Hemlata Versus Mahesh Babu, an amount of Rs. 500/- was allowed as maintenance to Smt. Hans Mukhi alias Hemlata under the provisions of Section 125 of Code of Criminal Procedure, vide order dated 28-04-1994 passed by Principal Judge, Family Court, Jhansi.
The husband continued to pay this amount.
As is evident from the impugned judgment, a decree of divorce between the parties was passed on 06-03-1981 by the District Judge, Etawah and as such, the revisionist and opposite party No.2 have ceased to be husband and wife.
The opposite party No.2-Smt. Hans Mukhi alias Hemlata moved an application under Section 127 of the Code of Criminal Procedure against Mahesh Babu in the court of Judicial Magistrate, Konch, District Jalaun at Orai which was registered in the said court as Case No.25/2003, Smt. Hans Mukhi alias Hemlata Versus Mahaesh Babu. It was averred that at the time, when an amount of Rs. 500/- was allowed to the applicant-Smt. Hans Mukhi alias Hemlata as maintenance in the year 1994, the husband-Mahesh Babu was employed as a Doctor and was earning Rs. 6,000/- per month. Now, Mahesh Babu has been promoted as Senior Medical Superintendent and his salary has been raised to Rs. 40,000/- per month. It was also mentioned in the application that the father of the applicant-Smt. Hans Mukhi alias Hemlata is a handicapped person and the applicant's brother, who was rendering some final support to the applicant, has died. Thus, the applicant is facing great difficulty in maintaining herself with a meager amount of Rs. 500/-. She prayed that an amount of Rs. 10,000/- may be allowed as maintenance.
The revisionist-Mahesh Babu filed objection and stated that the case under the provisions of Section 125 of the Code of Criminal Procedure was decided on 24-08-1994 on the basis of compromise and the amount of Rs. 500/- was settled as maintenance and now, no change can be made with regard to this amount.
It was also stated that since, the applicant-Smt. Hans Mukhi alias Hemlata has already been divorced, there is no ground for making any enhancement in the amount of maintenance.
The revisionist-Mahesh Babu further alleged that he has re-married and from the second marriage, there are two sons. One of his son is pursuing Engineering course at Jaunpur whereas the other son is a student of Class Xth. Mahesh Babu is thus incurring a lot of expenses upon the studies of his sons. Moreover, after the deductions amounting to Rs. 15,100/-, he is getting only Rs. 19,927/- as salary, which is not sufficient for the maintenance of his family.
The learned Magistrate after hearing the learned counsel for the parties, came to the conclusion that since there is enhancement in the salary of opposite party and there is increase in the cost of living, the applicant- Smt. Hans Mukhi alias Hemlata is entitled for an enhancement in the amount of maintenance. The learned Magistrate accordingly raised the amount from Rs. 500/- to Rs. 4,500/-. It is this order dated 29-06-2009 that has been impugned in this revision.
I have heard Shri Arvind Kumar Srivastava, learned counsel for the revisionist and the learned A.G.A. However, the learned counsel for the opposite party was not present at the time of hearing.
The learned counsel for the revisionist argued that the learned Magistrate committed illegality in passing the impugned order and he did not consider this fact that the revisionist-Mahesh Babu is spending a lot of money upon the study of his two sons and is also maintaining his wife after second marriage. The contention is that the finding is perverse and cannot be maintained.
The learned A.G.A., on the other hand, argued that the impugned order is perfectly justified and is based on the material available on the record and does not require any interference.
I have considered the submissions made by either side and I am of the opinion that the order passed by the learned Magistrate is perfectly justified and does not warrant any interference.
The applicant-Smt.Hans Mukhi alias Hemlata has alleged in the application that the salary of the opposite party-Mahesh Babu has been raised to Rs. 40,000/-. This fact has not specifically been denied by Mahesh Babu. Mahesh Babu has not even filed the copy of the objections along with the present revision so that it may be deciphered as to what was his version in the objections filed by him. A perusal of the impugned order indicates that this fact was not denied by the revisionist in his objections that his salary has been raised to Rs.40,000/-. Moreover, he did not file any Salary Certificate in the Trial Court showing his actual income. It appears that he contended in the objections that an amount of Rs. 15,100/- is being deducted from his salary and the take-home salary is Rs. 19,927/-. But, there is no documentary evidence to prove the averments. If the revisionist-Mahesh Babu had filed the Salary Certificate giving the details of his deductions, the Court would have been in a position to see as to in which Heads the deductions are being made and what is the take-home salary of the revisionist. The revisionist-Mahesh Babu has not even filed the receipt relating to the payment of tuition fee for his two sons so as to show that this much amount is being incurred upon the education of his two sons. In the absence of these documents, if the learned Magistrate after considering the salary of the revisionist-Mahesh Babu which according to Smt. Hans Mukhi alias Hemlata is Rs. 40,000/- and has not been controverted by the revisionist, has allowed the maintenance to the tune of Rs. 4,500/-, it cannot be said that any illegality has been committed in this regard. Moreover, it is a finding of fact and since the finding cannot be said to be perverse and without evidence, there is no reason to interfere in the said finding while exercising revisional jurisdiction.
The revision is devoid of merits and is accordingly dismissed.
The interim order dated 22-07-2009 is vacated.
The office is directed to send a copy of this order to the learned Judicial Magistrate, Konch, District Jalaun at Orai by Registered Post A.D. and also by FAX for information.
Order Date :- 8.7.2011 AK